Rosario v Ruggiero
Annotate this CaseDecided on November 4, 2019
Supreme Court, Warren County
Eric Rosario, Plaintiff,
against
Jessica Ruggiero and Gary Wells, Defendants.
2018-64949
Finkelstein & Partners, LLP, Newburgh (Kara L. Campbell of counsel), for plaintiff.
Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Andrea P. Demers of counsel), for defendants.
Robert J. Muller, J.
Plaintiff, then 51 years old and unemployed, was involved in a rear-end collision with a vehicle owned and operated by defendants on June 14, 2016. Thereafter, plaintiff commenced this personal injury action as a result of the injuries allegedly sustained. Following joinder of issue and extensive discovery, defendants now move for summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
By necessity of pleading plaintiff paraphrases the Insurance Law and alleges he sustained a "serious injury" to the right middle finger, right ring finger and right first metatarsal. The bill of particulars informs, by parroting the statute, all categories of the serious injury statute and also describes these injuries as "aggravated, exacerbated, activated and, or, precipitated" by defendants' negligence.
The motion is supported by what appears to be plaintiff's entire certified medical chart which includes substantially more information than is possibly relevant to this inquiry. This voluminous submission is distilled by a physician's affirmation which includes a history of "no frontal impact to the vehicle, and no deployment of any air bags within the vehicle[, with plaintiff stating] that he injured his right great toe and right hand, and . . . that the . . toe was injured when his foot came up and struck the underside of the dash[, and while] wearing sandals at the time." Plaintiff underwent a right foot debridement on November 18, 2016 and, on January 18, 2017, [*2]surgical trigger finger releases for the right 3rd and 4th digit.
Defendants' expert opines upon an extensive review of these medical records, testimony, and a physical examination, that there is no evidence of a permanent limitation in function or use of the right hand related to the accident that occurred on June 14, 2016 and that, with respect to the right foot, MRI findings suggest degenerative changes in the foot without evidence of an acute structural injury. This expert does, however, describe injuries of "trigger finger, right 3rd and 4th digit, status post surgical intervention" as "posttraumatic."
While defendants make a prima facie demonstration of no permanency in the hand—and a causation issue with respect to the foot—they have not submitted competent evidence establishing, prima facie, that the alleged injuries to any of the right fingers do not present as serious injuries under the significant disfigurement category of Insurance Law § 5102 (d). The papers submitted by defendants fail to eliminate triable issues of fact regarding plaintiff's claim, as set forth in the bill of particulars, that he sustained a serious injury under the significant disfigurement category of Insurance Law § 5102 (d). Defense counsel's written assurances that there are no scars "significant enough to make [plaintiff] the subject of pity and scorn" do not establish entitlement to summary judgment in this category. Indeed, the medical records clearly indicate plaintiff sustained surgical incisions for the right 3rd and 4th finger repairs and defense counsel's supporting affirmation describes a "healed 7cm dorsal incision" of the metatarsal (see Burt v MTA Bus Co., 172 AD3d 804, 805 [2019]).
Under the circumstances, the Court finds that "the issue [of] whether a reasonable person viewing . . . plaintiff's [scars] would regard [them] as unattractive, objectionable, or as the subject of pity or scorn presents an issue of fact that cannot be resolved by way of summary judgment" (Langensipen v Kruml, 92 AD3d 1302, 1303 [2009]; see Barnes v Occhino, 171 AD3d 1455, 1457 [2019]; Rodriguez v First Student, Inc., 163 AD3d 1425, 1427 [2018]). Defendants have failed to meet their prima facie burden of showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 358 [2002]; Barnes v Occhino, 171 AD3d at 1457). To the extent that defendants have so failed there is no need to consider plaintiff's opposition papers (see Vogler v Perrault, 149 AD3d 1298, 1299 [2017]; Green Planet Servicing, LLC v Martin, 141 AD3d 892, 893 [2016]).
It must also to be observed that, where a plaintiff establishes at trial that any one of the several injuries sustained in an accident constitutes a serious injury within the meaning of Insurance Law § 5102 (d), then he or she "'is entitled to seek recovery for all injuries incurred as a result of the accident'" (Nussbaum v Chase, 166 AD3d 638, 639 [2018], quoting Bonner v Hill, 302 AD2d 544, 545 [2003]; see Insurance Law § 5104 [a]; Rizzo v DeSimone, 6 AD3d 600, 601 [2004]; Bebry v Farkas-Galindez, 276 AD2d 656, 656 [2000]; Prieston v Massaro, 107 AD2d 742, 743-744 [1985]). Thus, if plaintiff establishes at trial that he sustained a serious disfigurement as a result of the accident, he will then be entitled to seek damages for all causally related injuries.
Therefore, the Court having considered the Affirmation of Andrea P. Demers, Esq. together with Exhibits "A" through "H" attached thereto, dated June 24, 2019, submitted in support of the motion; Memorandum of Law of Andrea P. Demers, Esq., dated June 24, 2019, submitted in support of the motion; Affirmation of Kara J. Campbell, Esq. together with Exhibits [*3]"A" through "F" attached thereto, dated August 28, 2019, submitted in opposition to the motion; and Reply Affirmation of Andrea P. Demers, Esq., dated September 5, 2019, submitted in further support of the motion, it is it is hereby
ORDERED that defendants' motion for summary judgment is denied in its entirety; and it is further
ORDERED that any relief not specifically addressed has nonetheless been considered and is expressly denied.
The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated June 24, 2019 as well as the submissions above enumerated. Counsel for plaintiff is hereby directed to promptly obtain a filed copy of this Decision and Order for service with notice of entry upon defendants in accordance with CPLR§ 5513.
Dated: November 4, 2019
Lake George, New York
ROBERT J. MULLER, J.S.C.
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