HEYWOOD v. Bibol Bogodzhon, Defendant. (2018)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered April 18, 2017, which, inter alia, granted defendant Transit Authority's motion for summary judgment dismissing the complaint based on plaintiff's inability to establish a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Plaintiff, a cross-country runner, alleged that, as the result of a collision between a Transit Authority bus and a pedicab, the pedicab jumped a curb and fell over on her ankle, causing a laceration that left a scar, as well as a history of left knee dislocation and pain.

The Transit Authority established prima facie entitlement to summary judgment by submitting the affirmed report of an orthopedist who, after examination of plaintiff's ankles and knees, found normal and near-normal range of motion in all planes (see Paduani v. Rodriguez, 101 A.D.3d 470, 470, 955 N.Y.S.2d 48 [1st Dept. 2012] ).  The orthopedist also examined the ankle scar, describing it as a healed 6 centimeter laceration with keloid scarring and no swelling (see Loiseau v. Maxwell, 256 A.D.2d 450, 682 N.Y.S.2d 74 [2d Dept. 1998] ).  Plaintiff's own deposition testimony showed that she had resumed running within months after the accident and completed a marathon years later, indicating an absence of any significant or permanent injury to her ankles or knees (see Gaddy v. Eyler, 79 N.Y.2d 955, 957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 [1992] ).

In opposition, plaintiff failed to raise an issue of fact.  Plaintiff's medical records from the period after the accident demonstrated that she had full knee range of motion, the ankle scar was just 3 centimeters long, and the laceration was “healed, clean, dry and intact.”  The plaintiff offered photographs of the scar, without any evidence concerning when they were taken (see Aguilar v. Hicks, 9 A.D.3d 318, 781 N.Y.S.2d 318 [1st Dept. 2004] ).  Even accepting the photographs as a fair and accurate rendition of the scar, a reasonable person would not regard the condition depicted as “unattractive, objectionable, or as the subject of pity or scorn” (see Sidibe v. Cordero, 79 A.D.3d 536, 913 N.Y.S.2d 78 [1st Dept. 2010] ).  Plaintiff's expert rendered no opinion regarding whether any knee or ankle injuries resulted from the accident, and thus failed to raise an issue of fact as to whether she sustained a serious knee or ankle injury.