March 11, 2014
Christopher V., an Infant over the Age of Fourteen Years, by his Mother and Natural Guardian, Wanda R., et al., Plaintiffs-Respondents,
James A. Leasing, Inc., et al., Defendants-Appellants.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Colin F. Morrissey of counsel), for appellants.
Berson & Budashewitz, LLP, New York (Jeffrey A. Berson of counsel), for respondents.
Gonzalez, P.J., Tom, Friedman, Andrias, Saxe, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about June 24, 2013, which denied defendants' motion for summary judgment dismissing the complaint in its entirety, unanimously reversed, on the law, with costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiffs, in opposition to defendants' summary judgment motion, raised for the first time in their supplemental bill of particulars a new serious injury claim under Insurance Law 5102(d), i.e., a "significant disfigurement" to the infant plaintiff's face. It was error for the court to consider this new injury claim (see Torres v Dwyer, 84 A.D.3d 626 [1st Dept 2011] ; Marte v New York City Tr. Auth., 59 A.D.3d 398 [2d Dept 2009]).
In any event, defendants submitted evidence showing that plaintiff did not suffer a significant disfigurement to his face as a result of the accident. At his deposition, plaintiff testified that, as a result of the accident, he received a scar on his face, which was consistent with the description in the emergency room records of an abrasion to his face. However, both the emergency room records and plaintiff's testimony contradicted the supplemental bill of particulars' allegation as to the nature and location of the scar. Moreover, at the time of plaintiff's deposition, there was no discernable scar to plaintiff's face, and both plaintiff and defense counsel had to reference a photograph to observe the alleged injury (see e.g. Sidibe v Cordero, 79 A.D.3d 536 [1st Dept 2010]).