MSZL&M Recent Victory in “Significant Disfigurement” Claim
Mar 21, 2018 - About the Firm by Defense Counsel
Recently, Peter Frucchione of our New York City office prevailed on a Motion for Summary Judgment which attacked the claim that the plaintiff had sustained a “serious injury” pursuant to New York State’s Insurance Law threshold standards.
Typically, threshold motions involve collateral attacks on one of the many cubby holes, set forth in the Insurance Law, such as whether the plaintiff sustained a “permanent collateral limitation of motion,” or a “significant limitation of a non-permanent nature that has prevented the plaintiff from performing the material acts 90 out of the 180 days immediately after the accident.” Rarely, however, does the issue before the court hinge on whether the plaintiff did or did not sustain a “significant disfigurement”.
Pursuant to Section 5102(d) of the New York State Insurance Law, a “significant disfigurement”, i.e., a scar, must be one that “a reasonable person would view as unattractive, objectionable or as the subject of pity or scorn”.
Social Media Photographs Show No Significant Disfigurement
As a pre-cursor to Mr. Frucchione’s motion, he was very aggressive in obtaining the plaintiff’s social media photographs, which were incorporated into the motion. It should also be noted that the plaintiff’s counsel also overplayed their hand, apparently figuring (incorrectly) that a laceration that required several sutures to close would be enough to defeat the motion.
The plaintiff specifically alleged a right temporoparietal area laceration, which resulted in significant scarring. However, the social media photographs of the scar revealed that the scar was obscured by the plaintiff’s hairline and was barely visible.
In reviewing the evidence the trial court set forth the standard that is applied in New York in which it is incumbent upon a plaintiff to submit objective medical evidence from a plastic surgeon to address the severity of a plaintiff’s scar. The plaintiff in this case, however, did not submit any competent objective medical evidence and instead merely submitted photographs of the scar to attempt to create an issue of fact as to whether the plaintiff sustained a serious injury. The court, in reviewing the photographs submitted by the defendant and plaintiff’s counsel, determined that the scar did not constitute a significant disfigurement to dismiss the complaint as a matter of law.
This positive result was only possible due to Mr. Frucchione’s innovative use of the plaintiff’s own social medial photographs. As always, perseverance and diligence are the key to an effective defense.