Brackenbury v. Franklin

93 A.D.3d 423, 939 N.Y.S.2d 63

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 1, 2012
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered January 20, 2011, which, to the extent appealed from as limited by the briefs, granted defendants’ motion for summary judgment dismissing the complaint, and denied plaintiffs application for leave to amend or supplement his bill of particulars to assert a claim of serious injury under the categories of “significant disfigurement” and “fracture” of Insurance Law § 5102 (d), unanimously affirmed, without costs.

Photographs of plaintiffs healed, thin scar on his hand were not sufficient to establish an issue of fact as to whether plaintiff sustained a “significant disfigurement” as a result of the accident. Similarly, plaintiff failed to present evidence sufficient to establish a prima facie claim based on a fracture of his fourth metacarpal. No fracture was diagnosed by his doctor contemporaneous with the accident, and the doctor’s equivocal observation of a “[p]robable healed fracture” in an X ray taken a year and a half after the accident is insufficient (see Glover v Capres Contr. Corp., 61 AD3d 549, 550-551 [2009]; O’Bradovich v Mrijaj, 35 AD3d 274 [2006]). Concur — Tom, J.P., Friedman, Acosta, DeGrasse and Roman, JJ.