LYNCH v. Mohammad Talukder, et al., defendants-respondents. (2008)

In an action to recover damages for personal injuries, the defendants Rashid Iqbal and Yakov Kaplan appeal from an order of the Supreme Court, Kings County (Ambrosio, J.), dated December 17, 2007, which denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the motion of the appellants Rashid Iqbal and Yakov Kaplan for summary judgment dismissing the complaint and all cross claims insofar as asserted against them is granted.

In opposition to the appellants' prima facie establishment of entitlement to summary judgment, the plaintiff alleged that the two scars she sustained to her chin as a result of the subject accident constituted a significant disfigurement and, therefore, constituted a serious injury within the meaning of Insurance Law § 5102(d).  However, contrary to the plaintiff's contentions, a reasonable person viewing the color photographs of her chin in its altered state, which she submitted in opposition to the motion, would not regard the condition as unattractive, objectionable, or as the object of pity and scorn (see Sirmans v. Mannah, 300 A.D.2d 465, 752 N.Y.S.2d 359;  Loiseau v. Maxwell, 256 A.D.2d 450, 682 N.Y.S.2d 74;  Edwards v. DeHaven, 155 A.D.2d 757, 547 N.Y.S.2d 462).   Thus, the appellants' motion should have been granted and the complaint and all cross claims dismissed insofar as asserted against them.