Thomas v Robb

[*1] Thomas v Robb 2006 NY Slip Op 51835(U) [13 Misc 3d 1215(A)] Decided on September 29, 2006 Supreme Court, Richmond County McMahon, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through October 16, 2006; it will not be published in the printed Official Reports.

Decided on September 29, 2006
Supreme Court, Richmond County

George Thomas, Kunjumole George, Ancy George, Ajoy George and Abey George and Alvin George, Infants by their mother and natural guardian, Kunjumole George, Plaintiffs,

against

Harry C. Robb and Bank of America, Defendants.



12987/01

Judith N. McMahon, J.

On June 19, 1999, the plaintiff George Thomas allegedly sustained injuries when a motor vehicle operated and leased by defendant Harry C. Robb collided with his automobile at the intersection of Victory Boulevard and Wooley Avenue, Staten Island, New York. Defendant Bank of America owned the vehicle leased by defendant Robb. Plaintiffs Kunjumole George, Ancy George, Ajoy George, Abey George and Alvin George, were passengers in the vehicle operated by plaintiff Thomas. In August, 2001, the plaintiffs commenced this action and issue was joined by

service of an answer by the defendants. The defendants now move for summary judgment dismissing the complaint on the ground that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

The defendants made a prima facie showing of their entitlement to summary judgment (see, Toure v. Avis Rent A Car Sys., 98 NY2d 345 [2002]; Chou v. Welsh, 15 AD3d 622 [2d Dept. 2005]) as to all plaintiffs. However, plaintiffs Abey George, Ajoy George and Alvin George do not oppose the motion, and as such, the complaint is dismissed as to these three plaintiffs.

In opposition, plaintiffs George Thomas, Kunjumole George and Ancy George submitted, inter alia, affirmations of their chiropractor specifying the decreased range of motion in their lumbar and cervical spines as evidenced by objective findings. The chiropractor asserted that the plaintiffs' injuries were permanent and causally related to the subject motor vehicle accident and that they had reached maximum medical improvement rendering further treatment merely palliative. This evidence is sufficient to raise a triable issue of fact precluding the granting of summary judgment on the issue of serious injury with regard to the plaintiffs' soft tissue injuries (see, Shpakovskaya v. Etienne, 23 AD3d 368 [2d Dept. 2005]; Clervoix v Edwards, 10 AD3d 626 [2d Dept. 2004]; Mauro v. Gold Star Limo Corp.,8 AD3d 352 [2d Dept. [*2]2004]).

Additionally, it is undisputed that plaintiff Thomas George sustained a 3 centimeter scar on his right forearm as a result of the subject accident. In opposition to the defendants' motion, the plaintiff raised a triable issue of fact as to whether the scar constituted a "significant disfigurement" in that a reasonable person viewing the right forearm in its altered state wouldregard the condition as unattractive, objectionable, or as the object of pity and scorn (see, Tugman v. PJC Sanitation Service, Inc., 23 AD3d 457 [2d Dept. 2005]; Sirmans v. Mannah, 300 AD2d 465 [2d Dept. 2002]).

Finally, the plaintiff Ancy George submitted an affirmation of her neurologist stating that the subject motor vehicle accident "was the competent producing cause of her post-traumatic epilepsy". This opinion established the existence of a triable issue of fact as to whether her subsequent onset of epilepsy was caused by the head trauma sustained during the accident (see, Pommells v. Perez, 4 NY3d 566 [2005]). Accordingly, it is

ORDERED, that the motion of Harry C. Robb and the cross-motion of Bank of America for summary judgment dismissing the complaint as to the plaintiffs Ajoy George, Avey George and Alvin George on the ground that they did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is granted; and it is further,

ORDERED, that the motion of Harry C. Robb and the cross-motion of Bank of America for summary judgment dismissing the complaint as to the plaintiffs Thomas George, Kunjumole George and Ancy George on the ground that they did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is denied.

The Clerk is to directed to enter judgment accordingly.

E N T E R,

Dated: September 29, 2006

J.S.C.