THOMAS M. DELLA PIETRO v. MARIE E. KANTRA and VAULT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2711-04T12711-04T1

THOMAS M. DELLA PIETRO,

Plaintiff-Appellant,

v.

MARIE E. KANTRA and VAULT,

Defendants-Respondents.

__________________________________

 

Argued December 7, 2005 - Decided

Before Judges Axelrad and Miniman.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3451-03.

Andrew T. Walsh argued the cause for appellant (Chamlin, Rosen, Uliano & Witherington, attorneys; Mr. Walsh, on the brief).

Cindy Newman argued the cause for respondents (Law Offices of Jennifer M. Campbell, attorneys; Ms. Newman, on the brief).

PER CURIAM

Plaintiff Thomas M. Della Pietro appeals from a summary judgment dismissing his complaint for failure to pierce the tort threshold under N.J.S.A. 39:6A-8(a). Pursuant to DiProspero v. Penn, 183 N.J. 477 (2005), and Serrano v. Serrano, 183 N.J. 508 (2005), we reverse and remand for trial.

A party is entitled to summary judgment only if there is no genuine issue as to any material fact in the record. R. 4:46-2. In deciding a summary judgment motion, we apply the standard articulated by the Supreme Court in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995).

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

[Id. at 540.]

Therefore, we must assume plaintiff's version of the facts is true and give plaintiff the benefit of all favorable inferences. Id. at 536.

On June 22, 2002, plaintiff was operating his motorcycle on Route 36 West in Union Beach. Plaintiff was traveling in the far right lane, which is used for right turns onto Stone Road. Defendant was traveling in the middle lane of Route 36 West. When she attempted to make a right turn into the parking lot of an ice-cream shop, she clipped plaintiff's motorcycle. Plaintiff maintained a verbal threshold automobile insurance policy under AICRA.

Plaintiff suffered various injuries, the most significant of which is a boutonniere deformity of the left fourth finger with a twenty-five degree extension lag at the proximal interphalangeal (PIP) joint. His treating physician, Gary M. Pess, M.D., certified that plaintiff underwent x-rays at the Bayshore Community Hospital and again at his office. He also certified that his treatment, clinical evaluation, x-rays, and objective findings led him to conclude that plaintiff had sustained a significant disfigurement of his left hand as a result of the accident. He also opined that plaintiff's boutonniere deformity was a permanent injury that has not healed to function normally and will not heal to function normally with further medical treatment.

Dr. Pess's certified statements are supported by his medical records which reflect that he examined plaintiff's hand four months after the accident and found that the finger was swollen, had a boutonniere deformity with a twenty-five degree extension lag at the PIP joint. Plaintiff could not fully flex that finger into the palm. The deformity is readily noticeable in photographs. Plaintiff complains that he still cannot straighten his finger and that he suffers from persistent swelling, pain, stiffness, weakness and difficulty making a fist.

In order to be able to recover damages for non-economic loss under N.J.S.A. 39:6A-8(a), the plaintiff must present objective clinical evidence of significant disfigurement or a permanent injury. An injured party who is subject to the tort threshold of N.J.S.A. 39:6A-8(a) is not required to prove that an injury has had a serious impact on that person's life. DiProspero, supra, 183 N.J. at 506. Neither does such a person have to prove that the injury was serious. Serrano, supra, 183 N.J. at 518 (holding that the types of injuries in N.J.S.A. 39:6A-8(a) are serious by definition). Plaintiff has presented sufficient evidence of a significant deformity and a permanent injury to vault the tort threshold and proceed to trial.

 
Reversed.

(continued)

(continued)

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A-2711-04T1

January 5, 2006