Azevedo v Platform Taxi Serv., Inc.
Annotate this CaseDecided on June 23, 2010
Supreme Court, Kings County
Sheryl Azevedo AND SILVIO AZEVEDO, Plaintiffs,
against
Platform Taxi Service, Inc. AND LESLAW ZIELINSKI, Defendants.
21386/07
Plaintiffs Sheryl Azevedo and Silvio Azevedo were represented by Mitchel H. Ashley, Esq. of The Ashley Law Firm, PLLC. Defendants Platform Taxi Service, Inc. and Leslaw Zielinski were represented by Louis T. Cornacchia III, Esq. of Skenderis & Cornacchia, P.C.
Jack M. Battaglia, J.
Defendants Platform Taxi Service, Inc. and Leslaw Zielinski move for an on order, pursuant to CPLR 3212, dismissing the Verified Complaint of plaintiff Sheryl Azevedo, on the ground that she did not sustain a "serious injury" within the meaning of Insurance Law §5102 (d) as a result of the February 21, 2007 accident. Plaintiff alleges "serious injury" under the "significant disfigurement" category in Insurance Law §5102 (d), based upon facial scarring.
In support of their motion, Defendants submit the affirmed report of plastic surgeon Robert D. Goldstein, M.D., who examined Plaintiff on January 19, 2010; and a copy of the transcript of Plaintiff's examination before trial. However, "the unsigned deposition transcript of the plaintiff . . . [does] not constitute admissible evidence in light of the defendants' failure to demonstrate that the transcript was forwarded to the plaintiff for her review pursuant to CPLR 3116 (a)." (See Marmer v IF USA Express, Inc., ____ AD3d ____, 2010 NY Slip Op 4151, * 1 [2d Dept May 11, 2010]; see also Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901, 902 [2d Dept 2008].)
The results of Dr. Goldstein's examination are stated in their entirety as follows:
"Physical examination with specific reference to the area of scarring shows that there is no perceptible residual scarring of the upper lip. On the bridge of the nose, there is an inferior [*2]area of white hypopigmentation measuring 1.25 x 0.5 cms. and above this there is a linear scar that measures 1.4 cms. There is no disability associated with these areas of scarring.
Enclosed are photos for your review."
Since Dr. Goldstein does not state that the photographs accurately represent that which they purport to depict, they are inadmissible as evidence. (See Corsi v Town of Bedford, 58 AD3d 225, 228-29 [2d Dept 2008].) In any event, photographs taken three years after the accident, when they are the only photographs submitted, would provide a "potentially unbalanced representation of the plaintiff's injury" on the question of "significant disfigurement" (see Marchiano v Mason, 179 AD2d 739, 740 [2d Dept 1992]), particularly since even "temporary disfigurement" may qualify as a "serious injury" (see Caruso v Hall, 101 AD2d 967, 968 [3d Dept 1984], aff'd 64 NY2d 843 [1985]; Pecora v Lawrence, 28 AD3d 1136, 1137 [4th Dept 2006].) Indeed, Dr. Goldstein states that he reviewed "copies of 3 black and white photographs . . . from St. Vincent's Hospital," but the contemporaneous photographs are not provided to the Court for consideration on this motion.
"The standard by which significant disfigurement is to be determined . . . is whether a reasonable person would view the condition as unattractive, objectionable, or as a subject of pity or scorn." (Landsman v Bunker, 142 AD2d 986, 986 [4th Dept 1988]; see also Maldonado v Piccirilli, 70 AD3d 785, 786 [2d Dept 2010]; Lynch v Iqbal, 56 AD3d 621, 622 [2d Dept 2008]; Prieston v Massaro, 107 AD2d 742, 743 [2d Dept 1985].) The dimensions, hue, texture, and particularly the location, of scarring will, of course, influence whether it constitutes a "significant disfigurement," as well as the likelihood that the appearance of a scar could be improved by treatment (see Abdulai v Roy, 232 AD2d 229, 229 [1st Dept 1996].)
"Facial scarring requires close evaluation. It is the type of injury which should not be dismissed without viewing the injury. A residual imperfection may not be as significant on other portions of the anatomy as it may be upon the face or other exposed areas. A court, in evaluating the gravity of the disfigurement to determine whether as a matter of law the marring qualifies as a significant disfigurement' within the threshold requirements of the No-Fault Law, must consider all relevant factors. These should include the location of the injury, the age, sex and occupation of the victim, other scars of disfigurement, blemishes, imperfections caused at birth or the result of pox or acne and any other distinguishing features which will detract from the person's appearance as it existed prior to the date of the accident." (Waldron v Wild, 96 AD2d 190, 193-94 [4th Dept 1983] [emphasis added].)
Here, defendants describe Plaintiff's occupation at the time of the accident as "an entertainer at a Gentleman's Club, Flashdancers" (Affirmation in Support, ¶ 4.)
Facial scars an inch or less in length have been found to qualify as a "significant disfigurement" (see Onder v Kaminski, 303 AD2d 665, 666 [2d Dept 2003]; Abdulai v Roy, 232 AD2d at 229; Prieston v Massaro, 107 AD2d at 743; Waldron v Wild, 96 AD2d at 193-94); but have also been found not to qualify (see Sirmans v Mannah, 300 AD2d 465, 466 [2d Dept 2002]; [*3]Petrivelli v Walz, 227 AD2d 735, 736 [3d Dept 1996]; Spevak v Spevak, 213 AD2d 622, 622-23 [2d Dept 1995]; Koppelman v Lepler, 135 AD2d 507, 508 [2d Dept 1987].) Clearly, quantifiable criteria are of limited use on matters of personal aesthetics, influenced as they are by the age, gender, and cultural dispositions of the plaintiff and the fact-finder.
Defendants have failed to make a prima facie showing that "significant disfigurement" within the meaning of Insurance Law §5102 (d) did not result from the February 21, 2007 accident. There is no admissible photographic evidence of Plaintiff's appearance either soon after the accident or at a later point, although photographs taken at the hospital were apparently in Defendants' possession and provided to its examining doctor. Dr. Goldstein does not address the visibility of the scar on the bridge of Plaintiff's nose, nor does he address the possibility of improvement with treatment. Dr. Goldstein's opinion that "[t]here is no disability associated with these areas of scarring" is opaque at best, without stated foundation, and appears irrelevant to a claim of "disfigurement."
Moreover, Defendants do not address the "relevant factors" of this case, including "the age, sex and occupation of the victim" (see Waldron v Wild, 96 AD2d at 193-94.) Although Defendants appropriately review caselaw explicating the meaning of "significant disfigurement" (Defendants' Memorandum in Support of Motion to Dismiss the Plaintiff's Complaint at 7-8), there is no articulated correspondence to the facts of this case, including, perhaps most importantly, Plaintiff's occupation.
On this important issue, the Court has noted Defendants' Affirmation in Reply, addressing allegations found in affidavits submitted by Plaintiff in opposition, but which, as properly noted by Defendants, are not in admissible form (see CPLR 2409 [c]; Pra III, LLC v Gonzalez, 54 AD3d 917, 918 [2d Dept 2008].) Defendants' suggestion that allegations as to the effect of scarring on Plaintiff's occupation "fail[ ] to account for other factors . . . , such as the fact that she has aged, weight gain/loss, or the effects of the economy on people's ability to frequent Gentlemen's Clubs" (Affirmation in Reply ¶ 16) is not shown to have any evidentiary support in the record. Counsel's further statement that "most Gentlemen's Clubs tend to be dark, and . . . for the most part, . . . the customers are not interested in discussing world events with exotic dancers" (id.) is presumably not based upon personal knowledge.
In matters of culture and aesthetics, the distinction between summary judgment and trial is particularly important. (See Carruso v Hall, 101 AD2d at 968, 969.)
Defendants' motion is, therefore, denied.
June 23, 2010___________________
Jack M. Battaglia [*4]
Justice, Supreme Court
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