| Autiello v Cummins |
| 2009 NY Slip Op 06754 [66 AD3d 1072] |
| October 1, 2009 |
| Appellate Division, Third Department |
| Jill P. Autiello, Respondent, v Joshua K. Cummins,Appellant. |
—[*1] William L. Nikas, Hudson Falls, for respondent.
Malone Jr., J. Appeal from an order of the Supreme Court (Hall Jr., J.), entered July 15, 2008in Washington County, which granted plaintiff's motion for partial summary judgment.
In this personal injury action arising out of a motor vehicle collision in September 2003,plaintiff sought partial summary judgment on the issues of defendant's liability and plaintiffhaving sustained a serious injury pursuant to Insurance Law § 5102 (d). Defendant, whilenot contesting the issue of liability for the accident, opposed the motion as to serious injury,contending that plaintiff failed to establish that her injury was causally related to the accident.Supreme Court granted plaintiff's motion, prompting this appeal by defendant.
We affirm. As the proponent of the summary judgment motion, plaintiff bore the burden ofestablishing, as a matter of law, that she suffered a serious injury pursuant to Insurance Law§ 5102 (d) and that the injury was causally related to the accident (see generallyZuckerman v City of New York, 49 NY2d 557, 562 [1980]; Card v Brown, 43 AD3d 594, 595[2007]). Plaintiff testified that the impact from the collision caused her mouth to strike thesteering wheel and plaintiff's medical records indicate that she was experiencing pain in herupper lip area two days after the accident. Plaintiff further submitted the sworn affidavit ofAlfred Hollis, her treating dentist, who diagnosed plaintiff as suffering a fractured front tooththat required it to be removed and replaced with an implant. Hollis opined that a metal post,which had been inserted [*2]into the tooth in a root canalprocedure years prior to the accident, had been driven through the tooth and into the gum tissuecausing the tooth to fracture. Hollis concluded that the metal post could have been driven intothe gum tissue only by a blunt force trauma and attributed the injury to plaintiff striking thesteering wheel with her mouth as a result of the collision. John Turco, another dentist whotreated plaintiff for the injury to her tooth, also concluded in a sworn affidavit that she suffered afractured tooth as the result of the motor vehicle accident. Mindful that a fractured tooth mayconstitute a serious injury pursuant to Insurance Law § 5102 (d) (see Moffitt v Murray, 2 AD3d1110, 1111 [2003]; Kennedy v Anthony, 195 AD2d 942, 942-943 [1993]), weconclude that plaintiff's evidence was sufficient to satisfy her burden.
The burden then shifted to defendant to raise a triable issue of fact as to plaintiff's injurythrough the submission of competent medical evidence (see Horton v Warden, 32 AD3d 570, 572 [2006]). To that end,defendant submitted an unsworn letter from dentist Dean DeLuke, in which DeLuke concludedthat there was no evidence in plaintiff's medical records linking the injury to the accident andgenerally stated that teeth that had been previously treated with root canal therapy weregenerally more prone to fracture. Insofar as this letter was unsworn, it is of no probative valueand is incompetent support for opposition to plaintiff's motion (see Bright v McGowan, 63 AD3d1239, 1241 [2009]; Tuna vBabendererde, 32 AD3d 574, 576 n [2006]). Moreover, even if the report was properlysworn, DeLuke's conclusory and unsupported assertion as to the cause of plaintiff's injury isinsufficient to withstand summary judgment (see Ramos v Howard Indus., Inc., 10 NY3d 218, 224 [2008]; Ann JJ. v Schenectady Assn. for RetardedCitizens, 59 AD3d 772, 773 [2009]).
Cardona, P.J., Peters, Lahtinen and Stein, JJ., concur. Ordered that the order is affirmed, withcosts.