LOISEAU v. MAXWELL (1998)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (Davis, J.), dated November 20, 1997, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Kenneth Loiseau did not sustain a serious injury within the meaning of Insurance Law § 5102(d);  and (2) a judgment of the same court dated December 17, 1997, dismissing the complaint.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that the respondents are awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).  The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a][1] ).

It is undisputed that the infant plaintiff suffered a scar five centimeters in length and one centimeter in width on the lower part of his right leg.   In opposition to the defendants' motion for summary judgment, the plaintiffs alleged that the scar constituted a “significant disfigurement” and, therefore, was a serious injury within the meaning of Insurance Law § 5102(d).   However, contrary to the plaintiffs' arguments, a reasonable person viewing the infant plaintiff's leg in its altered state would not regard the condition as unattractive, objectionable, or as the subject of pity or scorn (see, Edwards v. DeHaven, 155 A.D.2d 757, 547 N.Y.S.2d 462).   Accordingly, the defendants' motion was properly granted.

MEMORANDUM BY THE COURT.