SALTER v. “John Doe,” et al., Defendants. (2004)

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered September 25, 2003, which granted defendants' motions for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants' doctor's report states that although at the time of the examination plaintiff complained of pain in his right cheekbone, a contusion there had resolved, and the report does not mention any swelling.   This sufficed to show, prima facie (see Copeland v. Kasalica, 6 A.D.3d 253, 775 N.Y.S.2d 276 [2004] ), that the right cheek swelling, depicted in plaintiff's photographs and claimed to be a “significant disfigurement” within the meaning of the statute, did not exist at the time of the August 2002 exam.   Plaintiff's representation, bolstered by affidavits from his mother and a friend, that the swelling “occurred shortly after the [May 2000] accident and continues to this day [August 2003],” does not satisfy his burden of adducing “objective medical proof in competent form to support his claim” (id.).