Edward Salter v New York City Transit Authority

Salter v New York City Tr. Auth. 2004 NY Slip Op 08999 [13 AD3d 92] December 7, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

Edward Salter, Appellant,
v
New York City Transit Authority et al., Respondents, et al., Defendants.

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Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered September 25, 2003, which granted defendants' motions for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), unanimously affirmed, without costs.

Defendants' doctor's report states that although at the time of the examination plaintiff complained of pain in his right cheekbone, a contusion there had resolved, and the report does not mention any swelling. This sufficed to show, prima facie (see Copeland v Kasalica, 6 AD3d 253 [2004]), that the right cheek swelling, depicted in plaintiff's photographs and claimed to be a "significant disfigurement" within the meaning of the statute, did not exist at the time of the August 2002 exam. Plaintiff's representation, bolstered by affidavits from his mother and a friend, that the swelling "occurred shortly after the [May 2000] accident and continues to this day[*2][August 2003]," does not satisfy his burden of adducing "objective medical proof in competent form to support his claim" (id.). Concur—Nardelli, J.P., Mazzarelli, Andrias, Friedman and Gonzalez, JJ.