Spoth v. Clark

• Decision Date: 10 March 1989
• Citation: 539 N.Y.S.2d 192,148 A.D.2d 953
• Parties: John C. SPOTH and Diane L. Spoth, Appellants, v. Janet V. CLARK, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 192

539 N.Y.S.2d 192

148 A.D.2d 953

John C. SPOTH and Diane L. Spoth, Appellants, v.Janet V. CLARK, Respondent.

Supreme Court, Appellate Division Fourth Department.

March 10, 1989.

Grashow, Berger & London, by Murray Grashow, Williamsville, for appellants.

Maghran, McCarthy & Flynn, by Leo Fabrizi, Buffalo, for respondent.

Before DILLON, P.J., and CALLAHAN, BOOMER, GREEN and DAVIS, JJ.

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 A.D.2d 190, 468 N.Y.S.2d 244;see also, Rulison v. Zanella, 119 A.D.2d 957, 958, 501 N.Y.S.2d 487;Savage v. Delacruz, 100 A.D.2d 707, 474 N.Y.S.2d 850;Smith v. Mouawad, 91 A.D.2d 700, 457 N.Y.S.2d 608).Defendant did not meet its initial burden of going forward with proof in admissible form to establish its entitlement to summary judgment (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).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.

Order insofar as appealed from...