| Newman v Datta |
| 2010 NY Slip Op 03173 [72 AD3d 537] |
| April 20, 2010 |
| Appellate Division, First Department |
| Kathleen Newman, Respondent, v Ashutush Datta et al.,Appellants. |
—[*1] Sinel & Associates, PLLC, New York (Jessica Keeley of counsel), for respondent.
Order, Supreme Court, New York County (Paul Wooten, J.), entered July 7, 2009, whichdenied defendants' motion for summary judgment dismissing the complaint, unanimouslyaffirmed, 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 injurydid not constitute a serious injury within the meaning of the statute (see Kennedy vAnthony, 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 leasttwo fractured teeth about which he made no finding that the fractures antedated plaintiff'saccident (see Pommells v Perez, 4NY3d 566, 572 [2005]).
We would find, in any event, that plaintiff raised an issue of fact through an affidavit by heroral surgeon, who stated that, based upon his examination of her and review of her dentalrecords, it was his opinion that the accident caused fractures in two of plaintiff's teeth and that, asa result, plaintiff would be required to undergo extensive and ongoing dental treatment (seeKennedy, 195 AD2d at 944). Concur—Andrias, J.P., Sweeny, Renwick,Abdus-Salaam and Manzanet-Daniels, JJ.