Newman v Datta

Newman v Datta 2010 NY Slip Op 03173 [72 AD3d 537] April 20, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 9, 2010

Kathleen Newman, Respondent,
v
Ashutush Datta et al., Appellants.

—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for appellants.

Sinel & Associates, PLLC, New York (Jessica Keeley of counsel), for respondent.

Order, Supreme Court, New York County (Paul Wooten, J.), entered July 7, 2009, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Insofar as "a fracture" is one statutory definition of "serious injury" (Insurance Law § 5102 [d]), we conclude that defendants failed to establish prima facie that plaintiff's dental injury did not constitute a serious injury within the meaning of the statute (see Kennedy v Anthony, 195 AD2d 942, 944 [1993]; see also Sanchez v Romano, 292 AD2d 202, 203 [2002]). Defendants' expert dentist, based on his examination of plaintiff, identified at least two fractured teeth about which he made no finding that the fractures antedated plaintiff's accident (see Pommells v Perez, 4 NY3d 566, 572 [2005]).

We would find, in any event, that plaintiff raised an issue of fact through an affidavit by her oral surgeon, who stated that, based upon his examination of her and review of her dental records, it was his opinion that the accident caused fractures in two of plaintiff's teeth and that, as a result, plaintiff would be required to undergo extensive and ongoing dental treatment (see Kennedy, 195 AD2d at 944). Concur—Andrias, J.P., Sweeny, Renwick, Abdus-Salaam and Manzanet-Daniels, JJ.