| Doty v McInerny |
| 2010 NY Slip Op 07656 [77 AD3d 1264] |
| October 28, 2010 |
| Appellate Division, Third Department |
| Mary T. Doty, as Parent and Guardian of Sarah M. Doty, an Infant,Appellant, v Margaret H. McInerny et al., Respondents. |
—[*1] Levene, Gouldin & Thompson, L.L.P., Binghamton (David F. McCarthy of counsel), forrespondents.
Malone Jr., J. Appeal from an order of the Supreme Court (O'Shea, J.), entered February 10,2010 in Chemung County, which granted defendants' motion for summary judgment dismissingthe complaint.
Plaintiff, as the parent and guardian of Sarah Doty, commenced this action alleging that Dotysustained serious injuries within the meaning of Insurance Law § 5102 (d) as a result of amotor vehicle accident. Defendants moved for summary judgment dismissing the complaint andplaintiff cross-moved for partial summary judgment on the issue of defendants' negligence.Supreme Court granted defendants' motion and plaintiff appeals.
As limited by her brief, plaintiff initially contends that Supreme Court erred by grantingdefendants' motion for summary judgment because a question of fact exists as to whether Dotysustained a fracture to her right foot. However, neither the amended complaint nor the bill ofparticulars contain allegations that Doty sustained a serious injury to her foot in the form of afracture and, accordingly, Supreme Court properly refused to consider this claim, which was firstraised in opposition to defendants' motion (see Lee v Laird, 66 AD3d 1302, 1303 [2009]; MacDonald vMeierhoffer, 13 [*2]AD3d 689, 689 [2004]).
Plaintiff next contends that summary judgment dismissing the complaint was improperbecause she raised a triable issue of fact with respect to her claim of a significant disfigurement.However, as the proponents of the summary judgment motion, defendants presented sufficientmedical evidence that neither the approximately one-centimeter scar on the right side of Doty'sforehead nor the approximately 1½-centimeter scar on her right foot constitutes asignificant disfigurement (seeLicygiewicz v Stearns, 61 AD3d 1254, 1255 [2009]). In opposition, plaintiff producedthe affidavit of Doty's treating physician, who described the two scars as permanent, indicatedthat they were each discolored and visible from three meters away and opined, in a conclusorymanner, that they constituted a serious injury.[FN*]However, the photographs that were included in the record refute any claim that a reasonableperson viewing these scars would consider them to be "unattractive, objectionable or the subjectof pity or scorn" so as to constitute a significant disfigurement with the meaning of the InsuranceLaw (Baker v Thorpe, 43 AD3d535, 537 [2007]; see Maldonado vPiccirilli, 70 AD3d 785, 786 [2010]). Accordingly, Supreme Court appropriately granteddefendants' motion for summary judgment dismissing the complaint.
Mercure, J.P., Rose, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote *: Although plaintiff alsosubmitted Doty's affidavit in which Doty avers, among other things, that the scars make her feelself-conscious, Doty's subjective claims are insufficient to raise a triable issue of fact (see e.g.Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]).