Defendants, Dimas Calderon ("Calderon") and Salomon Gonzalez-Lopez ("Gonzalez-Lopez"), move (Seq. No. 01), pursuant to CPLR § 3212, for an order granting them summary judgment and dismissing the complaint of plaintiff and all cross-claims on the ground that they are not liable for the happening of the subject accident and move, pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York, for an order granting summary judgment to defendants on the ground that plaintiff did not sustain a "serious injury" in the subject accident as defined by New York State Insurance Law § 5102(d). Plaintiff opposes defendants Calderon and Gonzalez-Lopez's motion. Defendant Kerry A. Gillespie "(Gillespie") cross-moves (Seq. No. 02) for an order dismissing the complaint of the plaintiff on the threshold issue, and all cross-claims of the co-defendants, and granting her summary judgment. Said cross-motion is also submitted in opposition to defendants Calderon and Gonzalez-Lopez motion on liability. Plaintiff opposes this motion.

The action arises from a motor vehicle accident involving a collision between a motor vehicle owned and operated by defendant Gillespie and a motor vehicle owned by defendant Gonzalez-Lopez and operated by defendant Calderon, in which plaintiff was a passenger. The accident occurred at approximately 3:50 p.m. on July 3, 2005, at or near the intersection of Austin Boulevard and Jamaica Avenue, North Long Beach, New York. It is alleged that, at the time of said accident, defendant Calderon was driving a 1992 Honda and plaintiff was a passenger in the front passenger seat. The automobile in which plaintiff and defendant Calderon were traveling was driving southbound on the two lane roadway of Austin Boulevard. Defendant Gillespie was exiting the parking lot for the Outback Steakhouse Restaurant and making a left [*2]turn out of said parking lot onto Austin Boulevard. On or about June 24, 2008, plaintiff commenced this action by service of a Summons and Verified Complaint. Issue was joined by defendants Calderon and Gonzalez-Lopez on October 16, 2008. Issue was joined by defendant Gillespie on August 14, 2008.

It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. See Sillman v. Twentieth Century- Fox Film Corp., 3 NY2d 395, 165 NYS2d 498 (1957); Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (1986); Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980); Bhatti v. Roche, 140 AD2d 660, 528 NYS2d 1020 (2d Dept. 1988). To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant's favor. See Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 416 NYS2d 790 (1979). Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation. See CPLR § 3212 (b); Olan v. Farrell Lines Inc., 64 NY2d 1092, 489 NYS2d 884 (1985).

If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. See Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980), supra . When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist. See Sillman v. Twentieth Century- Fox Film Corp. , 3 NY2d 395, 165 NYS2d 498 (1957), supra . Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue. See Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966, 525 NYS2d 793 (1988).

Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. See Barr v. Albany County, 50 NY2d 247, 428 NYS2d 665 (1980); Daliendo v. Johnson, 147 AD2d 312, 543 NYS2d 987 (2d Dept. 1989).

Defendants Calderon and Gonzalez-Lopez submit that the accident occurred when his automobile was struck by defendant Gillespie's automobile as she made a left turn from the Outback Steakhouse Restaurant onto Austin Boulevard in order to continue traveling in a northbound direction. Defendants Calderon and Gonzalez-Lopez argue that their automobile had the right of way and that there was no evidence presented to demonstrate that the car operated by defendant Calderon was negligent or a proximate cause of the subject accident. Defendants Calderon and Gonzalez-Lopez contend that defendant Gillespie was negligent for making a left turn directly into the path of Defendants Calderon and Gonzalez-Lopez's automobile which was legally proceeding with the right of way.

Defendant Gillespie opposes Defendants Calderon and Gonzalez-Lopez's motion for dismissal on liability grounds asserting that defendant Calderon testified in his Examination Before Trial ("EBT") that he saw defendant Gillespie's automobile when it was five feet away coming out of the parking lot on his right with the front half of the vehicle in the street and the [*3]back half in the parking lot. Defendant Gillespie also asserts that defendant Calderon testified that he did not look to his right in the minute before the accident. Defendant Gillespie argues that "[t]he Appellate Division recently noted in Todd v. Godek...that a driver is negligent where an accident occurs because he or she has failed to see that which through the proper use of his or her senses he or she should have seen....A driver who has the right of way has a duty to exercise reasonable care to avoid a collision with another vehicle already in the intersection."

Plaintiff also opposes Defendants Calderon and Gonzalez-Lopez's motion on liability grounds arguing that "[i]t is our position that the defendant, GILLESPIE, is liable in this accident. She testified that she was making a left turn across two lanes out of the parking lot when an accident occurred. However, there is an issue as to whether the defendant, DIMAS CALDERON, used reasonable care in operating his motor vehicle. The defendant, GILLESPIE, was already in the roadway in two traffic lanes when the accident occurred and the defendant, CALDERON, only saw her vehicle for the first time when it was five feet from his vehicle. There is an issue as to whether the defendant, CALDERON, was traveling at a high rate of speed, paying attention and operated his vehicle with reasonable care. The testimony of both vehicle operators raise a triable issue of fact as to whether the defendant, CALDERON, was negligent and his negligence was a substantial factor in causing the accident."

After applying the law to the facts in this case, and construing the evidence in a light most favorable to the plaintiff, the Court finds that there exist material questions of fact concerning the causes and circumstances of the accident.

Therefore, based upon the foregoing, the branch of defendants Calderon and Gonzalez-Lopez's motion for summary judgment on the issue of liability is hereby denied.

The Court will now address the second branch of defendants Calderon and Gonzalez-Lopez's motion, and the cross-motion made by defendant Gillespie, that deals with the issue of whether or not plaintiff sustained a "serious injury." Within the particular context of a threshold motion which seeks dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a "serious injury" as enumerated in Article 51 of the Insurance Law § 5102(d). See Gaddy v. Eyler, 79 NY2d 955, 582 NYS2d 990 (1992). Upon such a showing, it becomes incumbent upon the non-moving party to come forth with sufficient evidence in admissible form to raise an issue of fact as to the existence of a "serious injury." See Licari v. Elliott, 57 NY2d 230, 455 NYS2d 570 (1982).

In support of a claim that the plaintiff has not sustained a serious injury, the defendants may rely either on the sworn statements of the defendants' examining physicians or the unsworn reports of the plaintiff's examining physicians. See Pagano v. Kingsbury, 182 AD2d 268, 587 NYS2d 692 (2d Dept. 1992). However, unlike the movant's proof, unsworn reports of the plaintiff's examining doctors or chiropractors are not sufficient to defeat a motion for summary judgment. See Grasso v. Angerami, 79 NY2d 813, 580 NYS2d 178 (1991).

Essentially, in order to satisfy the statutory serious injury threshold, the legislature requires objective proof of a plaintiff's injury. The Court of Appeals in Toure v. Avis Rent-a-Car Systems, 98 NY2d 345, 746 NYS2d 865 (2002) stated that a plaintiff's proof of injury must be supported by objective medical evidence, such as sworn MRI and CT scan tests. However, these sworn tests must be paired with the doctor's observations during the physical examination of the plaintiff. Unsworn MRI reports can also constitute competent evidence if both sides rely on those [*4]reports. See Gonzalez v. Vasquez, 301 AD2d 438, 754 NYS2d 7 (1st Dept. 2003).

Conversely, even where there is ample proof of a plaintiff's injury, certain factors may nonetheless override a plaintiff's objective medical proof of limitations and permit dismissal of a plaintiff's complaint. Specifically, additional contributing factors such as a gap in treatment, an intervening medical problem or a pre-existing condition would interrupt the chain of causation between the accident and the claimed injury. See Pommells v. Perez, 4 NY3d 566, 797 NYS2d 380 (2005).

Plaintiff claims that as a consequence of the above described automobile accident with defendants, she has sustained serious injuries as defined in New York State Insurance Law § 5102(d) and which fall within the following statutory categories of injuries:

1) significant disfigurement; (Category 3)

2) a significant limitation of use of a body function or system; (Category 8)

3) 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.(Category 9).

To meet the threshold regarding significant disfigurement, the law is well settled that the test for determining when an injury is a significant disfigurement is whether or reasonable person viewing the plaintiff's body in its altered state would regard the condition as unattractive, objectionable or as the object of pity or scorn. See Spevak v. Spevak, 213 AD2d 622, 624 NYS2d 232 (2d Dept. 1995); Maldonado v. Piccirilli, 70 AD3d 785, 894 NYS2d 119 (2d Dept. 2010); Lynch v. Iqbal, 56 AD3d 621, 868 NYS2d 676 (2d Dept. 2008); Sirmans v. Mannah, 300 AD2d 465, 752 NYS2d 359 (2d Dept. 2002). Small, well-healed scars do not constitute significant disfigurement within the meaning of the no-fault statute. See Santos v. Taveras, 55 AD3d 405, 866 NYS2d 43 (1st Dept. 2008).

To meet the threshold regarding significant limitation of use of a body function or system or permanent consequential limitation of a body function or system, the law requires that the limitation be more than minor, mild or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injury or condition. See Gaddy v. Eyler,79 NY2d 955, 582 NYS2d 990 (1992); Licari v. Elliot, 57 NY2d 230, 455 NYS2d 570 (1982). A minor, mild or slight limitation will be deemed insignificant within the meaning of the statute. See Licari v. Elliot, supra . A claim raised under the "permanent consequential limitation of use of a body organ or member" or "significant limitation of use of a body function or system" categories can be made by an expert's designation of a numeric percentage of a plaintiff's loss of motion in order to prove the extent or degree of the physical limitation. See Toure v. Avis, supra . In addition, an expert's qualitative assessment of a plaintiff's condition is also probative, provided: (1) the evaluation has an objective basis and (2) the evaluation compares the plaintiff's limitation to the normal function, purpose and use of the affected body organ, member, function or system. See id.

Finally, to prevail under the "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 [*5]ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment" category, a plaintiff must demonstrate through competent, objective proof, a "medically determined injury or impairment of a non-permanent nature" (Insurance Law § 5102[d]) "which would have caused the alleged limitations on the plaintiff's daily activities." See Monk v. Dupuis, 287 AD2d 187, 734 NYS2d 684 (3d Dept. 2001). A curtailment of the plaintiff's usual activities must be "to a great extent rather than some slight curtailment." See Licari v. Elliott, supra at 236. Under this category specifically, a gap or cessation in treatment is irrelevant in determining whether the plaintiff qualifies. See Gomez v. Ford Motor Credit Co., 10 Misc 3d 900, 810 NYS2d 838 (Sup. Ct., Bronx County, 2005).

With these guidelines in mind, this Court will now turn to the merits of defendants Calderon and Gonzalez-Lopez's motion. In support of their motion, defendants Calderon and Gonzalez-Lopez submit the pleadings, the plaintiff's Verified Bill of Particulars, the transcript of plaintiff's examination before trial testimony, the transcript of defendant Gillespie's examination before trial testimony, the transcript of defendant Calderon's examination before trial testimony, the affirmed report of Robert Israel, M.D, who performed an independent orthopedic medical examination of plaintiff on January, 18, 2010, and the affirmed report of Ronald Klinger, M.D, who performed an independent neurologic medical examination of plaintiff on December 21, 2009.

Based upon this evidence, the Court finds that the defendants Calderon and Gonzalez-Lopez have established a prima facie case, that the plaintiff did not sustain serious injury within the meaning of New York State Insurance Law § 5102(d). Dr. Israel examined the plaintiff, performed quantified and comparative range of motion tests on plaintiff's cervical spine, lumbar spine and left knee. Dr. Israel concluded, "[r]esolved sprain of the cervical spine. Resolved sprain of the lumbar spine. Resolved sprain of the left knee. Based on my examination for an orthopedic point of view, the claimant has no disability as a result of the accident of record....No treatment would be reasonable and necessary at this time. The claimant requires no orthopedic treatment to include physical therapy, household help, durable medical equipment, transportation or diagnostic testing. The claimant is capable of work and ADLs without restrictions." Dr. Klinger examined the plaintiff and performed a detailed neurologic examination. Dr. Klinger concluded, "[a]s a result of the accident, the patient had some minor headaches, cervical and lumbosacral symptoms which lasted for a few months after the accident. The symptoms have all subsequently resolved except for an occasional headache. The patient is now functioning normally with no history of any sequelae or residual deficits or problems as a result of the accident. The patient is now working and raising her child with no significant neurologic complaints. I see no evidence of any permanent or ongoing disability or problems as a result of this patient's prior motor vehicle accident. She is neurologically cleared for all activities at this time."

Defendants Calderon and Gonzalez-Lopez argue that plaintiff's claim that the seven stitches to her chin which allegedly resulted in facial scarring to her chin equates to a "significant disfigurement" is without merit. Defendants Calderon and Gonzalez-Lopez assert that "plaintiff's alleged scar on her chin does not qualify as a significant disfigurement' insofar as it is hardly visible and, in any event, clearly not disfiguring, and there was and is absolutely no evidence plaintiff regarded it as unattractive, objectionable , pitiful or scornful." Defendants Calderon and [*6]Gonzalez-Lopez contend that the injury to plaintiff's chin was treated only with sutures and plaintiff made no complaints concerning the laceration to her treating physicians or defendants Calderon and Gonzalez-Lopez's examining physicians. Defendants Calderon and Gonzalez-Lopez submit that "[n]otably, the statute does not just say disfigurement, but says instead significant disfigurement,' an indication that some slight or trivial disfigurement simply will not do. If every minor mark or scar on an injured plaintiff's face required a jury determination, the very purpose of the No-Fault Law would be defeated, as one of the purposes of enacting an objective verbal definition of a serious injury was to significantly reduce the number of automobile personal injury accident cases litigated in the courts." Defendants Calderon and Gonzalez-Lopez argue that no reasonable person could find plaintiff's injury to be unattractive, objectionable or the object of pity or scorn.

With respect to plaintiff's 90/180 claim, defendants Calderon and Gonzalez-Lopez rely on the deposition of the plaintiff which indicates there was virtually no diminution in the plaintiff's ability to work.

Defendant Gillespie joins in the aforementioned arguments with respect to the threshold claim.

The burden now shifts to the plaintiff to come forward with evidence to overcome the defendants' submissions by demonstrating the existence of a triable issue of fact that serious injury was sustained. See Pommells v. Perez, 4 NY3d 566, 797 NYS2d 380 (2005); Grossman v. Wright, 268 AD2d 79, 707 NYS2d 233 (2d Dept. 2000). Initially, the Court notes that plaintiff fails to address defendants Calderon and Gonzalez-Lopez's arguments with respect to Category 8, a significant limitation of use of a body function or system, and Category 9, 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. Plaintiff's opposition states "as a result of the impact between the two vehicles, the plaintiff sustained a significant disfigurement' via a scar to her face." Plaintiff states that, at the time of the accident she was looking in the visor mirror and had a plastic comb in her hand which broke across her face causing a laceration to her chin. Said laceration resulted in a facial scar to her chin that is one and one-eighth inches in length. Plaintiff contends that the standard enumerated in Spevak v. Spevak, supra , "is a highly subjective one, which needs to be evaluated by a jury to determine whether a reasonable person looking at the photographs would conclude whether the plaintiff's facial scar is unattractive, objectionable, or a subject of pity or scorn." Plaintiff claims that the photographs in Exhibit F of her Affirmation in Opposition show a visible ugly pink scar on the left side of the plaintiff's chin located at a significant distance from the closest part of her hairline. Plaintiff who obtained work after the accident cleaning offices, states, "[m]y appearance is important to me and to my family and the facial scar that I sustained as a result of the accident is very visible and obvious to the public. I regard my facial scar as unattractive, objectionable and when people see my scar they feel pity or sorry for me."

Plaintiff additionally submits the unsworn medical reports of her treating physicians which are all dated in July 2005 and none of them even mention the [*7]injury to her chin.

In reply to plaintiff's opposition, defendants Calderon and Gonzalez-Lopez argue that "plaintiff's claim of cervical and lumbar sprain and strain with radiculopathy is insufficient to meet the no-fault threshold....Plaintiff did not undergo any diagnostic studies and underwent physical therapy for a short period of time. Therefore it is clear she cannot demonstrate her claimed neck, back and knee injuries meet the serious injury threshold. Plaintiff's counsel has attached medical records concerning the treatment plaintiff purportedly received for claimed neck and back injuries; however, these reports should not be considered by the Court, as they are unsworn medical reports of plaintiff's treating physicians." Defendants Calderon and Gonzalez-Lopez further state that "neither of plaintiff's physicians whose reports were attached to the Affirmation in Opposition make any mention, whatsoever, that plaintiff sustained a laceration to her chin or that there were stitches in place or scarring noted therefrom....It is only now that a motion has been submitted to the Court that plaintiff has made any complaints about the laceration and scarring to her chin (no complaints were raised about this at her deposition) and there have been no medical records submitted to substantiate plaintiff's claim as to the length of the scar or whether the scar allegedly is disfiguring, as required by the Insurance Law."

Based upon the allowable evidence, plaintiff has not sustained her burden. Contrary to plaintiff's contention, the photographs she submitted in opposition to defendants' motions refute the claim that a reasonable person viewing plaintiff's face would, as a result of the remnants of the injury, regard it as unattractive or objectionable, or as the object of pity and scorn. See Maldonado v. Piccirilli, supra ; Lynch v. Iqbal, supra .

Plaintiff has additionally failed to establish by competent medical proof that she sustained a "significant limitation of use of a body function or system." See Insurance Law § 5102[d].

Furthermore, plaintiff's deposition testimony does not establish that she was unable to perform substantially all of the material acts which constitute his usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury.

Therefore, based upon the foregoing, defendants Calderon and Gonzalez-Lopez's motion (Seq. No. 01) dismissing the complaint against them and granting summary judgment on threshold grounds is hereby granted. Defendant Gillespie's cross-motion (Seq. No. 02) for an order dismissing the complaint of the plaintiff on the threshold issue, and all cross-claims of the co-defendants, and granting her summary judgment is also hereby granted.

This constitutes the decision and order of this Court.

E N T E R :

DENISE L. SHER, A.J.S.C.

XXX

Dated: Mineola, New York [*8]

October 12, 2010