Tracy v Rapesovska
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Tracy v Rapesovska 2003 NY Slip Op 30257(U) April 11, 2003 Supreme Court, Monroe County Docket Number: 2000/06403 Judge: Evelyn Frazee Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] 7 /h,:lslon ond Order of Honoroble Evelyn Fr11u1, dated April /I, ZOIJJ • SUPREME COURT OF THE STATE OF NEW YORK CIVIL TERM CQUNTY OF MONROE LINDA M. TRACY and WILLIAM TRACY, Index No. 2000/06403 Plaintiffs, -vsJULIJANA RAPE$0VSKA, Defendant APPEARANCES: Celllno & Barnes, P.C. 16 West Main Street. Suite 147 Rochester, New Yori< 14614 Appearing on behalf of the plaintiffs By: Christopher G. Johnson, Esq., of Counsel Egger & Leegant 134 South Fitzhugh Street Rochester, NY 14608 Appearing on behalf of the defendant By: JoAnne Leegant, Esq., of Counsel DECISION FRAZEE,J. Under Insurance Law §5102(d), a fracture constitutes serious injury (see, PJI 2:88C). A fractured tooth calling for prompt repair and treatment constitutes a prima facie showing of serious injury (see, Kennedy v Anthony, 195 AD2d 942 [3rd Dept, 1993]). The testimony of plaintiff's treating physician, Mary Ann Panara, ODS, was that plaintiff had broken off the tip of the buccal cusp of tooth #21, and that tooth [* 2] 8 Dft·l."l"n ""'Order of l/011or11ble l:."t•e/)'11 f"ro:ee, d11ted April / /, ZOOJ -2- #12 had a fracture down the middle. Dr. Panara not~'d a deep fracture rnesially distally through the pulp of the tooth that involved the nerve. Further, Or. Panara found an additional deep fracture in tooth #13 similar to that in tooth #12. Or. Panara stated that the vertical fractures could not be seen on x-ray, but were observed when the teeth were opened and examined intemally. Frank Lamar, DOS, who examined plaintiff at the request of the no-fault carrier, State Fann Insurance Company, testified that he nwfewed the records of plalntiffs previous dental providers, took his own panoramic ;c...ays, and conduded an examination of the plaintiff. As a result, Or. Lamar identified teeth #12, 13, 14, 20 and 21 as having fractures that involve the nerves requiring endodontic treatment Both Or. Panara and Or. Lamar testified that the two month delay in treatment was not unusual or unreasonable. Or. Lamar testified that the injury to plaintiffs teeth, five of which had endodontic treatment after the accident, was consistent with the trauma sustained in a motor vehicle accident of the type in which plaintiff was involved. Dr. Panara opined with a reasonable degree of dental certainty that the accident was the likely cause of the plaintiffs fractured teeth. Chartes Thompson, DDS, testified on behalf of the defendant Dr. Thompson saw plaintiff eleven months after the accident and after the endodontic treatment had been perfonned. Or. Thompson did not review any of the plaintiff's previous dental records or any x-rays. His examination of plaintiff's teeth was non-invasive and involved a visual exam only. Without specifying which teeth. it was Dr. Thompson's testimony that plaintiff had a number of teeth with enamel cracks that [* 3] ... -- ····- ... ·----------- 9 °"''i.wtHt 111ul OrrJa of Ho11orult- Ea•t-ly11 Frt1:.et', ""'"" ..fprll I I, ZtJIJJ • -3could be detected with transillumination. He stated that these are typically associated with thermal or biting stref;s. He also observed that plaintiff had a number of large fillings. again, without reference to specific teeth. Or. Thompson advised plaintiff that he could not relate her tooth injury to the motor vehicle accident because he had not been treating her all along, having first examined her ele"ien months after the accident, and he did not know her pre-accident condition. In reviewing the dentists' testimony. the competency of the proof off81ed by Dr. Thompson comes into question. Having performed only a visual examination of plaintiff. Dr. Thompson did not have sufficient information with which to perform proper and adequate diagnosis. Further, based on the limited infonnation before him, Dr. Thompson was unable to come to any condusion regarding the casual connection between the accident and the condition of plaintiffs teeth. A motion to set aside a jury verdict as against the weight of the evidence {CPLR §4404[a]) should not be granted unless the preponderance of the evidence in favor of the moving party is so great that the verdict could not have been reached upon any fair interpretation of the evidence (see, Gettis v Jarosz, 284 AD2d 938 (4th Dept., 2001); Chin v Kaplan, 280 AD2d 892 [4th Depl, 2001); F/eiss v South Buffalo Railviwy Company, 280 AD2d 1004 (4th Dept., 2001)). The Court concludes that the preponderance of the evidence, as outlined above, is so great that the verdict that plaintiff did not sust.ain a fracture must be set aside. In fact, this is really not a matter of conflicting evidence, but one of insufficient evidence on behalf of the defendant. Since the plain·i.iff meets the threshold with respect to a fracture, it is not [* 4] ......... ~---------------·-·-- ·-··--··· ······ ·- 10 D«l!!lon and Ordtr nf Honorable Evelyn Fr11:1t, dattd April I/, ZOOJ • •• -4- necessary to address her other claimed injuries. Accordingly, plaintiffs' motion is granted. So ordered. Dated at Rochester, New York this 11th day of April, 2003.
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