Salter v. New York City Transit Authority

Order, Supreme Court, New York County (Robert D. Lipp*93mann, J.), entered September 25, 2003, which granted defendants’ motions for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), unanimously affirmed, without costs.

Defendants’ doctor’s report states that although at the time of the examination plaintiff complained of pain in his right cheekbone, a contusion there had resolved, and the report does not mention any swelling. This sufficed to show, prima facie (see Copeland v Kasalica, 6 AD3d 253 [2004]), that the right cheek swelling, depicted in plaintiffs photographs and claimed to be a “significant disfigurement” within the meaning of the statute, did not exist at the time of the August 2002 exam. Plaintiffs representation, bolstered by affidavits from his mother and a friend, that the swelling “occurred shortly after the [May 2000] accident and continues to this day [August 2003],” does not satisfy his burden of adducing “objective medical proof in competent form to support his claim” (id.). Concur—Nardelli, J.P., Mazzarelli, Andrias, Friedman and Gonzalez, JJ.