Plaintiff commenced this action seeking to recover for personal injuries suffered in an automobile accident. By way of this motion, defendants move for an order granting summary judgment dismissing the complaint based upon plaintiff's failure to establish a serious injury pursuant to Insurance Law § 5102.

On July 14, 2002, at approximately 6:55 p.m., plaintiff ^[FN1] Jennifer Sutliff, a high school student at the time, was an unrestrained rear seat passenger in a 1996 Chevrolet owned and [*2]operated by Jaclyn Wagner.^[FN2] The Wagner vehicle was traveling in a westerly direction on Colesville Road as it approached an intersection with North Road in the Town of Colesville, New York. A vehicle being operated by Gordon H. Hartford and owned by Allen K. Hartford was traveling in a northerly direction on North Road and is alleged to have proceeded through said intersection without stopping or yielding the right of way causing a collision with the Wagner vehicle. The force of the collision allegedly caused the Wagner vehicle into a culvert and berm, flipping several times, causing personal injuries to its occupants including plaintiff herein.

Plaintiff's Verified Bill of Particulars alleges she suffered a serious injury as that term is defined under Insurance Law § 5102, namely a"significant disfigurement" due to a two inch scar on the left side of her face under her left eye.

From a procedural standpoint, plaintiff commenced this action by filing a summons and complaint on July 2, 2004 (hereinafter the "Sutliff Action"). The driver of the Wagner vehicle, Jaclyn Wagner, commenced a separate action against the defendants by filing a summons and complaint on January 10, 2005 (hereinafter the "Wagner Action").^[FN3] Defendants Hartford moved for an order pursuant to CPLR § 602 joining these matters for trial. After discussion with all counsel, on March 7, 2005, this court signed an Order directing that the Sutliff action and the Wagner action would be joined for purposes of discovery, however, the court reserved decision on the issue of whether these actions would be joined for trial with leave to all parties to renew said request upon the completion of discovery.^[FN4]

In support of their position, defendants rely upon the affidavit of their own expert Dr. David Storrs, plus plaintiff's emergency room records, the report of plaintiff's ophthalmologist Francis J. Gilroy, M.D., as well as plaintiff's own deposition testimony.

In support of her position, plaintiff submits her own affidavit, her attorney's affirmation, the pre-hospital care report, the United Health Services Hospital ("UHS") records, Dr. Gilroy's records, and photographs of her facial injury.

On a defense motion seeking summary judgment relative to the serious injury threshold, it is well-settled that the defendant "[b]ears 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 [citations omitted]" (McElroy v Sivasubramaniam, 305 AD2d 944, 945 [*3][2003]). Assuming a defendant meets this initial burden, then the burden shifts "[t]o plaintiff to demonstrate the existence of a triable issue of fact, through competent medical evidence based on objective findings and diagnostic tests [citations omitted]" (Armstrong v Morris, 301 AD2d 931, 932 [2003]).

It is well-settled that the determination of whether a scar constitutes a significant disfigurement within the meaning of Insurance Law § 5102(d) is dictated by the consideration of whether a reasonable person would conclude that the scar is unattractive, objectionable or the subject of pity or scorn (Johnson v Grant, 3 AD3d 720, 721 [2004]; Edwards v DeHaven, 155 AD2d 757, 758 [1989]; Baker v Thorpe, 43 AD3d 535 [2007]).

Defendants argue that plaintiff was treated at the emergency room with stitches and discharged with instructions to take Tylenol. The CT scan performed the following day revealed no evidence of fracture or dislocation in the mandible or left eye region. On September 16, 2003, just over a year after the accident, plaintiff was examined by Dr. Gilroy and his report indicates a normal exam. Further, Dr. Gilroy noted that "[t]here was no direct injury to the globe from the trauma"; the refractive error of mild myopia is unrelated to the injury; "the need for glasses was a normal part of [plaintiff's] growth process and was unrelated to her motor vehicle injury." Defendants also highlight plaintiff's own deposition testimony in which she states that the scarring was better a month after the accident and required no further treatment after removal of the stitches.

The court finds that defendants' proof suffices to meet their burden of proof, particularly with respect to Dr. Gilroy's report and plaintiff's own testimony that the scar improved a month after the accident. Thus, the burden shifted to plaintiff to come forward with proof in evidentiary form sufficient to raise a triable issue of fact. Plaintiff submits her own affidavit, as well as photographs of her facial scar soon after the accident and as it appears at this time.

The court finds plaintiff's proof establishes the existence of a triable issue of fact as to whether reasonable people could differ on whether plaintiff's scar is unattractive, objectionable or the subject of pity or scorn objectionable. The court has reviewed the photographs of plaintiff's facial scar and finds that, in and of themselves, they raise a question of whether or not plaintiff's scar is unattractive, objectionable or the subject of pity or scorn objectionable. Additionally, however, plaintiff testified in her deposition that she wore a scarf over her face for a month because she was so embarrassed by the scar, that the scar turns red in the summer, and she was the subject of ridicule while attending school. The court finds that the photographs, when coupled with plaintiff's own testimony that she was the subject of teasing and ridicule when she returned to high school, are more than sufficient to create questions of fact warranting denial of defendants' motion for summary judgment.

In view of the foregoing, the court finds that defendants' motion for summary judgment dismissing plaintiff's complaint is DENIED. [*4]

The foregoing constitutes an order of the court upon which judgment may be entered according to its terms.

It is so ordered.

October 10, 2007

Binghamton, New York

s/ Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court