New York State Court of Claims

New York State Court of Claims

TRUJILLO v. THE STATE OF NEW YORK, #2000-015-061, Claim No. 100155, Motion No. M-61811


Summary judgment will be granted dismissing a claim by an automobile accident victim when he has not sustained a serious injury as defined in the No Fault Insurance Law.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Hernan Trujillo, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 10, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The motion of the defendant for an order pursuant to CPLR 3212 dismissing the claim upon the ground that the claimant has not sustained a serious injury as defined in Insurance Law § 5102 is granted. This is a claim by a pro se inmate alleging that on March 16, 1999, while he was incarcerated at the Marcy Correctional Facility, he suffered an injury to his left leg when he was struck by a plow attached to a pickup truck. In a "STATEMENT OF FACTS" annexed as an exhibit to the claim the claimant describes the incident as follows:
. . . so I proceeded to cross the roadway, after my second or third step away from the curb, someone yell to me to lookout (watch out), so the others that was around me also frozed. A Civilian _______, was driving a pickup truck with a plow that was attached to the front of that vehicle when all of a sudden this vehicle started skidding and the plow ended up on my left leg right below my knee which did pierce my skin, at this time the civilian put his vehicle back into motion and drove away not showing any concerned for my health or well state of being, I walked on to the program building and reported the incident to my Drafting instructor . . .
Section 5104 of the Insurance Law precludes a suit to recover for personal injuries sustained in a vehicular accident of this nature unless the injured party has sustained a "serious injury". A serious injury is defined in Insurance Law § 5102(d):
"Serious injury" means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
In the case of Licari v Elliott, 57 NY2d 230, 237, 238, the Court of Appeals held that in order to implement the legislative policy considerations underlying the no-fault law it was for the courts to determine as a matter of law, in the first instance, whether the injured party had suffered a serious injury as defined in the statute.

Upon a summary judgment motion, "[a]s the moving party, defendant initially has the burden to establish that . . . [claimant] did not sustain a 'serious injury' within the meaning of the statute" (Tankersley v Szesnat, 235 AD2d 1010, 1011). The defendant can meet its evidentiary burden by submitting the unsworn medical records and reports of the claimant showing the insignificant nature of the injury (Cody v Parker, 263 AD2d 866; Gleason v Huber, 188 AD2d 581). If the defendant makes its prima facie showing the burden shifts to the injured party to "set forth competent medical evidence based upon objective medical findings and diagnostic tests to support his claim" and he or she may not rely solely upon subjective complaints of pain to establish the presence of a "serious injury"(Eisen v Walter & Samuels, 215 AD2d 149, 150). The defendant is entitled to summary judgment dismissing the lawsuit if the injured party fails to submit competent medical evidence raising a triable issue of fact as to whether a serious injury, as defined in the statute, has been sustained (Gaddy v Eyler, 79 NY2d 955).

The defendant has supported the summary judgment motion with a copy of the claimant's medical records, the claimant's own written report of the occurrence and photographs of the injury to claimant's left calf taken on the same day as the accident. There has been no opposition submitted by the claimant.

It is clear from the motion record that claimant did not suffer dismemberment, a fracture, loss of a fetus, permanent loss of a body organ, member, function or system. Claimant's medical records and his own description of what transpired after the accident establish that he returned immediately to his usual daily routine and thus was not prevented from performing substantially all of his usual and customary daily activities for not less than 90 out of the 180 days immediately following the occurrence

On the question of whether claimant sustained a "permanent consequential limitation of use of a body organ or member", the claimant's statement in the report of inmate injury dated March 16, 1999 (Exhibit C annexed to the affirmation of Joel L. Marmelstein dated May 25, 2000) is as follows:
As I (Hernan Trujillo) was crossing from in front of A-2 and a truck/plow being driven by a civilian came to a sudden stop on my leg slightly cutting/scratching my leg I walked back on the walkway and the civilian drove away not stopping to check if I were ok.
The first entry in claimant's ambulatory health record was made on March 16, 1999 by the treating nurse who sets forth the injury as a "small bruise to the left leg" requiring the cleansing of an "abrasion". On March 17, 1999, claimant's left leg appeared non-swollen, without bruising, and with a small abrasion, which was treated with Bacitracin ointment. On March 19, 1999, it was noted that claimant had a 17 x 4 mm abrasion on his left lower leg that was scabbed. Claimant went for medical care on March 30, 1999 complaining that his left calf was still hurting and the examining nurse noted that the abrasion was closed but there was some swelling and the area was warm to the touch. Later that day, Doctor Valdamudi examined the claimant and made entries noting a "scabbed abrasion" without "evidence of infection" and without abscess or swelling. Claimant last sought medical help for his injury on April 6, 1999 when he reported that the pain had decreased and that the wound was completely healed. The next entry relating to the claimant is dated April 15, 1999 regarding a twisted right ankle which he sustained while playing handball.

In the Court's view, the minor abrasion suffered by claimant, which did not impair his ability to engage in such sports as handball, did not as a matter of law rise to the level of a significant limitation of use of a body organ or member. There is simply no medical evidence, in admissible form or otherwise, which would give rise to a triable issue of fact as to whether claimant had sustained a permanent limitation of use.

The remaining category of serious injury is a significant disfigurement which with respect to scarring upon a leg raises the question of whether a reasonable person viewing the plaintiff's body in its altered state would regard the condition as unattractive, objectionable or the subject of pity or scorn in order to meet the statutory definition of significant disfigurement (Savage v Delacruz, 100 AD2d 707). In the case of Loiseau v Maxwell, 256 AD2d 450, it was determined as a matter of law that a scar five centimeters in length and one centimeter in width on the lower part of an infant's right leg was not a significant disfigurement. In the case of Edwards v DeHaven, 155 AD2d 757, 758, the Appellate Division held that it could determine that the injured plaintiff had not suffered a significant disfigurement from color photographs of a three-quarter inch 'indentation' on her left calf. The Court has before it color photographs of the claimant's left calf taken on the day of the incident. Having viewed the photographs, the Court determines that the injury and any attendant scarring is such that it could not possibly lead a reasonable person to find the claimant's leg to be unattractive, objectionable or the subject of pity or scorn.

In summary, the defendant has submitted medical evidence sufficient to meet its initial burden of establishing the absence of a serious injury and the claimant has not come forward with any medical proof in evidentiary form establishing a question of fact. Consequently, the summary judgment motion must be granted.

August 10, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated May 25, 2000;
  2. Affirmation of Joel L. Marmelstein dated May 25, 2000, with exhibits;
  3. Claim filed on April 13, 1999.