Spoth v. Clark

¶1Order insofar as appealed from unanimously reversed on the law with costs and motion denied, in accordance with the following memorandum: Special Term erred in granting defendant’s motion for summary judgment dismissing the second cause of action. On this record, whether Mr. Spoth’s facial scar constitutes a significant disfigurement is a question of fact (see, Waldron v Wild, 96 AD2d 190; see also, Rulison v Zanella, 119 AD2d 957, 958; Savage v Delacruz, 100 AD2d 707; Smith v Mouawad, 91 AD2d 700). Defendant did not meet her initial burden of going forward with proof in admissible form to establish her entitlement to summary judgment (see, Zuckerman v City of New York, 49 NY2d 557). The record does not disclose any photographic or medical evidence of the extent or nature of the scar, nor is there any indication that the court viewed the scar. (Appeal from order of Supreme Court, Erie County, McGowan, J. — dismiss cause of action.) Present — Dillon, P. J., Callahan, Boomer, Green and Davis, JJ.