Pietrocola v. Battibulli

• Citation: 238 A.D.2d 864,656 N.Y.S.2d 559
• Parties: Frank R. PIETROCOLA, Respondent, v. Richard J. BATTIBULLI, Appellant.
• Decision Date: 24 April 1997
• Court: New York Supreme Court Appellate Division

Page 559

656 N.Y.S.2d 559

238 A.D.2d 864

Frank R. PIETROCOLA, Respondent, v. Richard J. BATTIBULLI, Appellant.

Supreme Court, Appellate Division,

Third Department.

April 24, 1997.

Thuillez, Ford, Gold & Conolly (Michael J. Hutter, of counsel), Albany, for appellant.

Frank M. Putorti Jr. P.C. (Vincent W. Versaci, of counsel), Schenectady, for respondent.

Before CARDONA, P.J., and CREW, PETERS, SPAIN and CARPINELLO, JJ.

CREW, Justice.

Appeal from an order of the Supreme Court (Caruso, J.), entered February 2, 1996 in Schenectady County, which denied defendant's motion for summary judgment dismissing the complaint.

This action arises out of an automobile accident that occurred on January 8, 1993 when plaintiff's vehicle was struck in the driver's side door by a vehicle operated by defendant. Following the accident, plaintiff was treated at a local hospital for a 2 1/2-centimeter laceration just above his hairline and released. When plaintiff returned a few days later to have the stitches removed, he complained of pain in his lower back and left leg. Although X rays taken at that time revealed a normal lumbosacral spine, the pain apparently persisted and, in March 1993, plaintiff underwent a magnetic resonance imaging examination (hereinafter MRI), the results of which suggested the presence of a herniated disk and the apparent displacement of the S1 nerve root.

Plaintiff thereafter commenced this action against defendant for injuries allegedly sustained during the accident. As amplified in his bill of particulars, plaintiff claimed that he suffered a significant disfigurement as the result of the scar on his forehead and, further, that he had sustained both a permanent loss and significant limitation of use of a body function or system by virtue of the injuries to his lower back including, among other things, a herniated disk, sciatica and a loss of forward flexion (see, Insurance Law § 5102[d] ). Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint, contending that plaintiff failed to demonstrate that he had in fact sustained a serious injury. Supreme Court denied the motion, finding that the proof submitted by plaintiff in opposition was sufficient to create a question of fact in this regard, and this appeal by defendant followed.

Initially, with respect to plaintiff's claim that he sustained a significant disfigurement, we note that defendant's proof established that the scar in question was located above the hairline and was not readily discernible and that plaintiff offered no proof in opposition. Accordingly, defendant's motion for summary judgment should have been granted to the extent of dismissing the "significant disfigurement" portion of plaintiff's claim.

Turning to the "permanent loss" and "significant limitation of use" components of plaintiff's claim, we are persuaded that defendant satisfied his initial burden of establishing that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d) (see, Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). In support of his motion for summary judgment, defendant submitted, inter alia, an affidavit from Cyril Shea, an orthopedic surgeon who examined plaintiff in May 1995. According to Shea, his physical examination of plaintiff "did not reveal any objective findings or indications of injury whatsoever" much less one that was permanent or significant in nature, and disclosed no evidence of muscle spasms. Shea...