Opinion
2013-06-26
Eric F. BORQUIST, etc., respondent, v. HYDE PARK CENTRAL SCHOOL DISTRICT, et al., appellants.
Tarshis, Catania, Liberth, Mahon & Milligram, PLLC, Newburgh, N.Y. (Rebecca Baldwin Mantello of counsel), for appellants. O'Neil & Burke, LLP, Poughkeepsie, N.Y. (Richard J. Burke, Jr., of counsel), for respondent.
Tarshis, Catania, Liberth, Mahon & Milligram, PLLC, Newburgh, N.Y. (Rebecca Baldwin Mantello of counsel), for appellants. O'Neil & Burke, LLP, Poughkeepsie, N.Y. (Richard J. Burke, Jr., of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Dutchess County (Brands, J.), dated June 13, 2012, which denied their motion for summary judgment dismissing the complaint on the ground that Danielle Borquist did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.
ORDERED that the order is affirmed, with costs.
The defendants bore the initial burden of establishing as a matter of law that the scar on Danielle Borquist's face did not constitute a “ ‘significant disfigurement’ ” ( Onder v. Kaminski, 303 A.D.2d 665, 666, 757 N.Y.S.2d 571, quoting Insurance Law § 5102[d] ), defined as a condition which is unattractive, objectionable, or the object of pity and scorn ( see e.g. Maldonado v. Piccirilli, 70 A.D.3d 785, 786, 894 N.Y.S.2d 119). The photographs submitted by the defendants indicate that the scar was 3.5 centimeters long and was clearly visible on her forehead. Under these circumstances, the defendants failed to establish the absence of significant disfigurement as a matter of law ( see Waldron v. Wild, 96 A.D.2d 190, 194, 468 N.Y.S.2d 244). Although it is unclear from the photographs how visible the scar was after Danielle Borquist underwent plastic surgery, the evidence in the record indicates that there are triable issues of fact which cannot be resolved by way of summary judgment ( see Zulawski v. Zulawski, 170 A.D.2d 979, 566 N.Y.S.2d 141).
Accordingly, the defendants' motion for summary judgment dismissing the complaint was properly denied.