FEUTCHER v. Jephte Guillame, et al., Defendants-Respondents. (2019)

Defendants met their prima facie burden on their motion and cross motion for summary judgment dismissing plaintiff's claim under the significant disfigurement category of Insurance Law § 5102(d), with the affidavit of a plastic surgeon, who found that the hematoma at plaintiff's right temple was an area of “slightly increased prominence” of the soft tissues at her right temple that was “cosmetically acceptable,” and with a photograph of the plaintiff, which showed a only a slight bump.

In opposition, however, plaintiff raised an issue of fact, by submitting photographs taken in the month or two after the accident showing severe swelling and discoloration at her right temple and eye, and additional photographs taken two years after the accident which show, according to the affidavit of plaintiff's plastic surgeon, “swelling to the right temp[oral] region of [her] face [which] continues and causes a visible ‘bump’ to be present.”  Plaintiff's plastic surgeon further opined that, “[g]iven the length of time this facial cosmetic deformity has existed, ․ it is [a] permanent condition.”  Moreover, plaintiff's doctor also advised plaintiff that it would be tricky to do surgery to reduce the bump because of the nerves in the area and because it would leave a scar.

After reviewing the photographs, and considering all relevant factors, such as the location of the injury (here, the face), and the injured plaintiff's background (see Waldron v. Wild, 96 A.D.2d 190, 193–194, 468 N.Y.S.2d 244 [4th Dept. 1983] ), we find that plaintiff demonstrated the existence of a factual issue requiring a trial on the question of “significant disfigurement,” i.e. whether “a reasonable person would view the physical alteration as unattractive, objectionable, or ․ the subject of pity and scorn” (Abdulai v. Roy, 232 A.D.2d 229, 229, 647 N.Y.S.2d 778 [1st Dept. 1996] [internal quotation marks omitted] ).