        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

952
CA 16-00239
PRESENT: WHALEN, P.J., CENTRA, CARNI, AND CURRAN, JJ.


BRANDY KOCH, INDIVIDUALLY AND AS PARENT AND
NATURAL GUARDIAN OF CASSIDY KOCH,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

LISA RICHARDSON, DEFENDANT,
HEATHER M. GRIFFITH AND WILLIAM M. GRIFFITH,
DEFENDANTS-APPELLANTS.


LAW OFFICE OF DANIEL R. ARCHILLA, BUFFALO (MARTHA E. DONOVAN OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

VANDETTE PENBERTHY LLP, BUFFALO (JAMES M. VANDETTE OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Catherine
R. Nugent Panepinto, J.), entered October 27, 2015. The order denied
the motion of defendants Heather M. Griffith and William M. Griffith
for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted
and the complaint insofar as asserted on behalf of Cassidy Koch
against defendants Heather M. Griffith and William M. Griffith is
dismissed.

     Memorandum: Plaintiff, individually and on behalf of her
daughter, commenced this action seeking damages for injuries she and
her daughter allegedly sustained when the motor vehicle in which they
were traveling was struck by a vehicle owned and operated by Heather
M. Griffith and William M. Griffith (defendants). Defendants contend
that Supreme Court erred in denying their motion for summary judgment
dismissing the complaint on behalf of plaintiff’s daughter against
them on the ground that plaintiff’s daughter did not sustain a serious
injury within the meaning of Insurance Law § 5102 (d). We agree.

     Defendants met their initial burden of establishing as a matter
of law that plaintiff’s daughter did not sustain a serious injury
under the permanent consequential limitation of use, significant
limitation of use, and 90/180-day categories by submitting her medical
records and the report of a physician who reviewed them, which
indicated that her symptoms of neck and back pain had resolved (see
generally Zuckerman v City of New York, 49 NY2d 557, 562). Plaintiff
                                 -2-                           952
                                                         CA 16-00239

failed to raise a triable issue of fact inasmuch as she did not submit
any evidence in opposition to defendants’ motion with respect to those
issues (see generally id.).

     Defendants also met their initial burden on the motion with
respect to the significant disfigurement category by submitting
photographs of the daughter’s cheek wherein the alleged scars were
imperceptible (see Heller v Jansma, 103 AD3d 1160, 1161). In
opposition to the motion, plaintiff did not raise an issue of fact
inasmuch as she did not present evidence that “ ‘a reasonable person
viewing [her daughter’s cheek] in its altered state would regard the
condition as unattractive, objectionable or as the subject of pity or
scorn’ ” (Smyth v McDonald, 101 AD3d 1789, 1791; see Heller, 103 AD3d
at 1161; Doty v McInerny, 77 AD3d 1264, 1265, lv denied 16 NY3d 703).
Furthermore, plaintiff’s assertion that the scars make her daughter
“feel uncomfortable” does not raise a triable issue of fact whether
the injury constitutes a significant disfigurement under the statute
(see Heller, 103 AD3d at 1161).




Entered:   November 18, 2016                    Frances E. Cafarell
                                                Clerk of the Court
