Opinion
March 10, 1989
Appeal from the Supreme Court, Erie County, McGowan, J.
Present — Dillon, P.J., Callahan, Boomer, Green and Davis, JJ.
Order 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 A.D.2d 190; see also, Rulison v. Zanella, 119 A.D.2d 957, 958; Savage v. Delacruz, 100 A.D.2d 707; Smith v. Mouawad, 91 A.D.2d 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 N.Y.2d 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.