New York State Court of Claims

New York State Court of Claims

LA PLANT v. THE STATE OF NEW YORK, #2003-015-361, Claim No. 105815, Motion No. M-67139


The presence of a 16 cm scar on claimant's right leg which was attributed to the accident giving rise to the claim was deemed a significant disfigurement for purposes of defeating defendant's motion to dismiss the claim for claimant's alleged failure to sustain a serious injury under § 5102 (d) of the 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:
Cade & Saunders, P.C.By: Steven M. Connolly, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 21, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion for summary judgment dismissing the claim for claimants' failure to demonstrate the existence of a serious injury as defined in Insurance Law § 5102 (d) is denied. The claim was filed on March 28, 2002 by leave of Court following a successful motion for late claim relief and seeks to recover for personal injuries sustained as the result of a two vehicle accident which occurred on September 25, 2000 on Route 3 in the Town of St. Armand, Essex County. Claimant[1] alleges in the claim that he was struck from behind by a vehicle owned by the defendant and operated by a State employee as he slowed to make a left turn while proceeding in an easterly direction on Route 3. As a result of the accident claimant allegedly sustained a laceration to the lower portion of his right leg which resulted in a 16 cm scar, a strain/contusion of his dorsal/lumbar spine and general musculoskeletal trauma producing acute pain in his back, hips, left shoulder, left arm and right chest. Claimant alleges in his bill of particulars that he was hospitalized from September 25, 2000 to September 29, 2000 and that since the date of the accident he has been unable to perform his usual and customary activities including domestic services such as general maintenance and repair.

The claim alleges that the claimant sustained a serious injury as defined in Insurance Law § 5102 (d). Claimants' bill of particulars (see, Exhibit A submitted by claimant in opposition to the motion) does not, however, specifically allege on which theory or theories of serious injury pursuant to § 5102 the instant claim is predicated. The claim itself states that damages are sought on the basis of "permanent personal injuries, including but not limited to dorsal lumbar spine injury and deep laceration of the right leg which required surgery to repair, medical expenses and loss of earnings."

From the allegations set forth in the verified claim and bill of particulars, the Court has determined that the claimant is asserting he suffered a serious injury based upon theories of significant disfigurement and permanent consequential limitation of use of a body function or system (low back). Claimant's counsel also asserts on the motion that claimant suffered a medically determined non-permanent injury resulting in a 90/180 day curtailment of his usual and customary daily activities.

Following joinder of issue and completion of discovery the defendant now moves for summary judgment dismissing the claim on the basis that claimant's injuries do not constitute a serious injury within the meaning of Insurance Law § 5102 (d). The motion was supported by a copy of a decision and order of the Honorable John L. Bell dated September 6, 2001 allowing the filing of a late claim (Exhibit A); a one page undated, unsigned document purporting to be a portion of a medical record from Adirondack Surgical Group, LLP (Exhibit B); an unsworn record of a medical consultation dated September 25, 2000 bearing the name of Craig B. DuMond, M.D. but no signature (Exhibit C); physical therapy evaluation and treatment records of Adirondack Medical Center dated 05/07/2001 with attachments (Exhibit D); a letter dated July 24, 2001 on stationery headed R.W. Hargraves, M.D. and bearing the name of Dr. Jeffrey Florman without signature (Exhibit E); an unsworn memorandum of medical examination dated October 5, 2001 bearing the signature of David G. Welch, M.D. (Exhibit F); an unsworn memorandum of medical examination dated November 16, 2001 bearing the signature of David G. Welch, M.D. (Exhibit G); and an unsworn memorandum of medical examination dated September 26, 2000 bearing the signature of Shawn Pertunen, D.O.

Claimant opposed the motion solely by an attorney's affirmation along with a copy of claimants' verified bill of particulars. Claimant Reginald LaPlant did not submit a factual affidavit and did not execute the claim's verification which would have otherwise permitted the pleading to be used in lieu of claimants' factual affidavit pursuant to CPLR 105(u).

Defense counsel submitted a reply affirmation in which he alleged that the claimants' opposition to the motion is legally insufficient to create a triable issue of fact.

Section 5104 of the Insurance Law precludes a suit to recover for personal injuries arising from the negligent use or operation of a motor vehicle unless the injured party has sustained a "serious injury." That term is defined in Insurance Law § 5102 (d) as follows:
"Serious injury" means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use 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."

"It is well settled that a defendant seeking summary judgment as to the no-fault threshold bears the initial burden of establishing the absence of a serious injury as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case (see, Santos v Marcellino, 297 AD2d 440, 441 [2002]; Markel v Scavo, 292 AD2d 757, 758 [2002]; Blanchard v Wilcox, 283 AD2d 821, 822 [2001]. To meet this burden, 'a moving defendant may rely on unsworn reports of a plaintiff's treating physician and is not required to produce affidavits or affirmations of medical experts to make the requisite showing provided, of course, that the reports are sufficiently complete and, combined with other proof, demonstrate that the plaintiff did not suffer a serious injury' (Seymour v Roe, 301 AD2d 991 [2003]; see, Cody v Parker, 263 AD2d 866, 867 [1999])" (McElroy v Sivasubramaniam, 305 AD2d 944, 945).

The burden of establishing the existence of a serious injury shifts to the claimant only upon defendant's satisfaction of the standard related above (Gaddy v Eyler, 79 NY2d 955, 957; Anderson v Persell, 272 AD2d 733).

In this matter the defendant relies solely upon partial, incomplete and unsworn medical reports and letters of claimant's treating physicians and has provided no "other proof" establishing the absence of a serious injury. The deficient nature of the proof is most notable with regard to the issue of whether the 16 cm scar on claimant's right leg referenced in paragraph 5 (c) of the claimants' bill of particulars constitutes a significant disfigurement under Insurance Law § 5102 (d).

The medical records submitted on the motion contain only the following references to the laceration and resulting scar:
Exhibit B

- "large laceration of the posterior right lower calf area"

Exhibit C

- "some rather deep abrasions, at least in his right leg"

- "his rather large laceration to the right leg prepped and in the process of being repaired"

Exhibit F

- "suffered a laceration over the medial aspect of his right leg just at about (sic) the level of the ankle"
- "The laceration of the ankle was repaired"
- "The laceration of the right ankle area went through the distal portion of this edema and very honestly I am somewhat surprised that it has healed as well as it has. There is a somewhat recessed scar in his (sic) area"

Exhibit G

- "Part of this however also relates to the accident because of the gash that he suffered in the back of the left (sic) leg at the time of the accident."

Exhibit H

"He is seen at beside today complaining only of right calf pain."

A serious injury will be found to exist in the form of significant disfigurement where "a reasonable person viewing plaintiff's body in its altered state [would regard] the condition as unattractive, objectionable or . . . the subject of pity and scorn"( Caruso v Hall, 101 AD2d 967, 968 affd 64 NY2d 843; see also, Siegle v County of Fulton, 174 AD2d 930; Petrivelli v Walz, 227 AD2d 735). On this motion the defendant has submitted neither the affidavit of an examining physician nor any photographic proof establishing the insignificance of the scarring to the lower portion of the claimant's right leg. Rather, what proof was offered on the motion tends to show that the claimant suffered a large laceration of the posterior right calf which was causally connected to the subject accident and resulted in a somewhat recessed scar. Upon this record it cannot be said that the defendant satisfied its burden of establishing as a matter of law that the scar was not a significant disfigurement requiring denial of the motion for summary judgment (Lewis v General Electric, 145 AD2d 728; Rulison v Zanella, 119 AD2d 957).

Since defendant has not met its burden on the motion the obvious legal insufficiency of the claimants' opposing papers is of no consequence. It is well settled that "the failure of [a] proponent of a motion for summary judgment to establish a prima facie entitlement to such relief requires the denial of that motion, regardless of the sufficiency of the opposing papers (Briones v BSC Sec. Corp., 224 AD2d 200; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853)" (Ingber v Sabato, 229 AD2d 884, 885-886). Since the movant has failed to prove claimant did not sustain a significant disfigurement it is unnecessary to address any of the other potential theories of "serious injury" discussed in the motion (O'Neill v O'Neill, 261 AD2d 459, 460).

The defendant's motion for summary judgment dismissing the claim is denied.

October 21, 2003
Saratoga Springs, New York
Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 17, 2003;
  2. Affirmation of Michael W. Friedman dated July 17, 2003 with exhibits;
  3. Affirmation of Steven M. Connolly dated August 13, 2003 with exhibit;
  4. Affirmation of Michael W. Friedman dated August 18, 2003 with exhibit.

[1]. The claim of Judy B. LaPlant is derivative only and references to claimant in the singular refer to Reginald LaPlant.