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
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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