Agudelo v. Pan American World Airways, Inc.

• Decision Date: 16 February 1983
• Citation: 118 Misc.2d 186,460 N.Y.S.2d 416
• Parties: Gabriel AGUDELO, Plaintiff, v. PAN AMERICAN WORLD AIRWAYS, INC. et al. Defendants.
• Court: New York Supreme Court

Page 416

460 N.Y.S.2d 416

118 Misc.2d 186

Gabriel AGUDELO, Plaintiff, v. PAN AMERICAN WORLD AIRWAYS, INC. et al. Defendants.

Supreme Court, Special Term,

Bronx County, Part I.

Feb. 16, 1983.

Montes & Potack by Frederic B. Potack, New York City, for plaintiff.

Bigham, Englar, Jones & Houston by David C. Kraus, New York City, for defendants.

WALLACE R. COTTON, Justice:

Defendants' motion for summary judgment dismissing the plaintiff's complaint is denied without prejudice with leave to renew upon the trial of the instant action after the close of the plaintiff's case.

While walking across the service road at J.F.K. International Airport on February 6, 1981, the plaintiff was injured in a vehicular accident when he was struck and knocked to the ground by a truck owned by the defendant, Pan American World Airways, Inc., and operated by its employee, the codefendant, James Engrassia. According to the defendants, "(t)he truck's left directional signal lamp, which is mounted on the side of the truck body, came into contact with the left side of plaintiff's head and face".

The plaintiff subsequently commenced the instant negligence action to recover damages for multiple personal injuries, including facial scarring, which he sustained in the airport accident. The defendants move for summary judgment to dismiss the plaintiff's complaint based upon their contention that his action is barred by § 673(1) of the Insurance Law because he did not sustain a "serious injury" as defined and set forth in § 671(4).

§ 673(1) recites, that "(n)otwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss (i.e. pain and suffering) except in the case of a serious injury..." § 671(4) of the Insurance Law defines a "serious injury" to encompass a personal injury which results in a "significant disfigurement".

The accident caused the plaintiff to suffer lacerations of the face which eventually resulted in the formation of three scars. The plaintiff claims that these scars constitute a "significant disfigurement" which thereby entitles him to maintain the present action against the defendants pursuant to § 673(1). Thus, the issue for the Court to decide is whether the medical evidence submitted by the plaintiff, (as well as the defendants) is sufficient to raise a genuine triable issue of fact in reference to the plaintiff's claim of a "significant disfigurement".

Before reviewing the medical evidence presented by the parties in the case at bar, it should be observed that "(b)ecause summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 231, 413 N.Y.S.2d 141, 385 N.E.2d 1068; Renda v. Frazer, 75 A.D.2d 490, 429 N.Y.S.2d 944). When reviewing a motion for summary judgment the focus of the Court's concern is issue finding, not issue determination, and the affidavits should be scrutinized carefully in the light most favorable to the party opposing the motion (see Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387; Renda v. Frazer, supra)", Goldstein v. Monroe County, 77 A.D.2d 232, 236, 432 N.Y.S.2d 966; (Smith v. Hooker Chemicals and Plastics Corp., App.Div., 455 N.Y.S.2d 446, 448; Riedman Agency, Inc. v. Meaott Const. Corp., App.Div., 456 N.Y.S.2d 553, 555 (1982), quoting Palmerton v. Envirogas, 80 A.D.2d 996, 997, 437 N.Y.S.2d 483). "The Court will accept as true on a summary judgment motion the opposing party's evidence and any evidence of the movant which favors the opposing party, Weiss v. Garfield, 21 A.D.2d 156 ", Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C3212:17, p. 437.

The affidavit of the plaintiff's medical expert, Dr. Reed, reveals as follows:

The plaintiff has been left with three facial scars as a result of the accident. "The first laceration has resulted in a two (2) centimeter curvilinear slightly depressed scar of the left dome of the nose. This scar is mildly red and in good alignment.

The second scar of the left lateral brow area measures one and a half (1 1/2) centimeters and is curvilinear, slightly red, irregular and healed.

The third scar is of the right cheek in the malar area. This is a one (1) centimeter transverse scar which is regular in appearance, normally pigmented and has good alignment".

Dr. Reed concludes by stating, "the above described scars represent permanent scars that will not benefit from reconstructive surgery".

The defendants had the plaintiff examined on July 13, 1982 by a physician in their behalf, Paul R. Weiss, M.D. In his report (also dated July 13, 1982 and annexed as exhibit F to the movants' papers), Dr. Weiss agrees with the plaintiff's physician that the plaintiff's three facial scars are permanent in nature and not amenable to corrective surgery. Significantly, his measurement of the plaintiff's nasal scar, four (4) centimeters, is two (2) centimeters longer than the earlier measurement reported by the plaintiff's physician. In reference to this scar, the Court notes that the plaintiff's medical records (see report dated May 14, 1981 by Medical Office annexed under exhibit D of the movants' papers) indicate that a total of seventeen (17) sutures, thirteen (13) on the left, four (4) on the right) were used to close the laceration of the nose which extended from the left to the right side of the nose. The defendant's doctor goes on to further state in his report that the scar crosses the nasal tip and contains a traumatic tattoo. Although the defendant's doctor opines that the plaintiff's scars are well-healed, he nevertheless admits to a slight depigmentation in all three.

Do the plaintiff's three facial scars constitute a "significant disfigurement" under the "no-fault" law? The Court cannot look to any guidance in the "no-fault" statute to answer this question because, unfortunately, the Legislature did not define the phrase "significant disfigurement" when it enacted the statute (see Schwartz, No Fault Insurance Litigation of Threshold Questions Under the New York Statute--The Neglected Procedural Dimension, 41 Brooklyn Law Review 37, 44).

Although no New York case has discussed or defined the meaning of a "significant disfiguring" injury in connection with a no-fault case, the word disfigurement is used in our State's Workers' Compensation Law ( § 15, subd. 3, par. t(1) wherein it is provided that the "board may award proper and equitable compensation for serious facial and head disfigurement"). As used in the context of a claim for workers' compensation benefits, the term "disfigurement" has been defined as "that which impairs or injures the beauty, symmetry, or appearance of a person; that which renders unsightly, misshapen, or imperfect, or deforms in some manner", Mitchum v. Inman Mills, 209 S.C. 307, 40 S.E.2d 38, (in accord, Arkin v. Industrial Commission of Colorado, 145 Colo. 463, 358 P.2d 879, 884; Bowen v. Chiquola Manufacturing Co., 238 S.C. 322, 120 S.E.2d 99, 102; Dombrowski v. Fafnir Bearing Co., 148 Conn. 87, 167 A.2d 458, 459, 461).

While the words, "significant disfigurement", are abstract, they have through daily use acquired a meaning that conveys to any interested person a sufficiently accurate concept. (Kovacs v. Cooper, 336 U.S. 77, 79 [69 S.Ct. 448, 449, 93 L.Ed. 513] )", Montgomery v. Daniels, 38 N.Y.2d 41, 58, 378 N.Y.S.2d 1, 340 N.E.2d 444. Thus, refining the case law definition of the word "disfigurement" as used in the workers' compensation cases, cited supra, "an injury is disfiguring (under the 'no-fault' law) if it alters for the worse the plaintiff's natural appearance. A disfigurement is significant if a reasonable person viewing the plaintiff's (face) in its altered state would regard the condition as unattractive, objectionable, or as the subject of pity or scorn", 1 PJI § 2:88B, supplement, p. 93.

Based upon all the medical evidence submitted, especially the defendants' medical report, the plaintiff has sustained his burden in demonstrating that a triable issue of fact exists in reference to his contention that his facial scars are "significantly disfiguring" under § 671(4), Insurance Law (cf. Cohen v. Lizza, 63 A.D.2d 557, 404 N.Y.S.2d 600). Although the movants' physician characterizes each of the plaintiff's three scars as minor, he does acknowledge that they cannot be corrected through plastic surgery. Moreover, assuming, but without deciding, that each individual scar is minor in nature, this Court is not convinced that three (3) minor scars which appear on the face cannot, collectively, constitute a "significant disfigurement". The nasal scar alone, which required seventeen (17) sutures to close, is four (4) centimeters in length. The defendants' physician took color pictures of the plaintiff's face when he examined him almost a year and a half after the accident (see exhibit F annexed to the movants' papers--the report of the defendants' medical expert). However, the defendants neglected to offer them in support of the instant motion.

The defendants' reliance on the recently decided Court of Appeals case of Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570, 441 N.E.2d 1088, in support of their motion for summary judgment to dismiss the plaintiff's complaint is misplaced. In the Licari case, supra, the trial court considered the question of whether the plaintiff sustained a "serious injury" to be a factual one and accordingly, submitted it to the jury. On appeal, the Appellate Division reversed and dismissed the plaintiff's complaint, holding that the plaintiff had failed, as a matter of law, to prove a serious injury under § 671(4), Insurance Law. The Court of Appeals sustained the Appellate Division's ruling. It rejected the plaintiff...