Galindo v. Hodminson

Galindo v Hodminson (2021 NY Slip Op 00115)

Galindo v Hodminson

2021 NY Slip Op 00115

Decided on January 12, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: January 12, 2021
Before: Renwick, J.P., Kern, Mazzarelli, Kennedy, Shulman, JJ.

Index No. 21259/19E Appeal No. 12818 Case No. 2020-03755

[*1]Jovito Galindo, Plaintiff, Clementina Rodriguez Apolonio, Plaintiff-Appellant,

v

Christian J. Hodminson, Defendant, Nector J. Rodriguez, Defendant-Respondent.

Salerno & Goldberg, P.C., Deer Park (Stephen Donnelly of counsel), for appellant.

The Zweig Law Firm, P.C., Brooklyn (Jonah S. Zweig of counsel), for respondent.

Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered on or about July 1, 2020, which, to the extent appealed from, denied plaintiffs' motion for summary judgment on their claim that plaintiff Clementina Rodriguez Apolonio (Apolonio) sustained a serious injury resulting in significant disfigurement under Insurance Law § 5102(d), unanimously affirmed, without costs.

Plaintiffs failed to establish prima facie that Apolonio's scar constitutes a significant disfigurement under Insurance Law § 5102(d) (see Petty v Dumont, 77 AD3d 466, 470 [1st Dept 2010]). Although the scar is in a prominent location on her forehead and is a little more than 2½ inches long, it is well healed and not discolored or raised (see Abdulai v Roy, 232 AD2d 229 [1st Dept 1996]). Contrary to plaintiffs' contention, the length and the permanence of the scar are not dispositive as to whether the scar is a significant disfigurement. The photographs show a slightly depressed, faint scar near the middle of Apolonio's forehead that a reasonable person may or may not find objectionable (see Petty v Dumont, 77 AD3d at 470 [1st Dept 2010]["Such determination must be made by a factfinder at trial"]; see also Feutcher v Composite Tr., 171 AD3d 641, 648 [1st Dept 2019]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 12, 2021