| Torres v Dwyer |
| 2011 NY Slip Op 04296 [84 AD3d 626] |
| May 24, 2011 |
| Appellate Division, First Department |
| Sergio Torres, Plaintiff, and Nieves Torres,Respondent, v June H. Dwyer et al., Appellants. |
—[*1] Jaroslawicz & Jaros LLC, New York (David Tolchin of counsel), for respondent.
Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered April 7, 2010, whichdenied defendants' motion for summary judgment dismissing the complaint of Nieves Torresindividually and on behalf of Steven Torres, unanimously reversed, on the law, without costs, themotion granted, and that portion of the complaint dismissed.
Defendants' submissions, including the affirmation of their neurologist and the excerpt fromthe deposition transcript of Nieves Torres, met their prima facie burden of showing that StevenTorres did not suffer a "serious injury" under Insurance Law § 5102 (d) (see Farrington v Go On Time CarServ., 76 AD3d 818 [2010]). The evidence submitted by Nieves in opposition to themotion did not raise a triable issue of fact as to whether Steven had suffered a fracture orpermanent injury. This plaintiff never made any allegation of a lost tooth, or loosened teeth, inany of the bills of particulars, and indeed made no argument relating to fracture or permanentinjury below, instead focusing exclusively on a 90/180-day claim. As such, the claim that damageto Steven's teeth constituted serious injury was not cognizable by the court (see Glover v Capres Contr. Corp., 61AD3d 549 [2009]; Marte v NewYork City Tr. Auth., 59 AD3d 398, 399 [2009]). In any event, an injury to a tooth canonly meet the statutory threshold of "serious" where it requires dental treatment (see Newman v Datta, 72 AD3d537 [2010]; Sanchez v Romano, 292 AD2d 202 [2002]). Here, the tooth knocked outof Steven's mouth was deciduous, replaced in time by an adult tooth, and there is no evidence herequired or received any further treatment for that injury. Likewise, there is no evidence that theother two teeth loosened in the accident were fractured, and review of the record reveals nocausal link between those teeth and the dental implants Steven later apparently received.
Nieves contends that the restrictions on Steven's participation in sports and after-schoolactivities, and his need for more time to do his homework due to his post-accident headaches,raise an issue of fact on his 90/180-day claim. However, attendance at school encompasses mostof a school-age child's usual and customary activities (see Lashway v Groshans, 241AD2d 832, [*2]834 [1997]). Steven missed only one week ofschool during the relevant period, and although his ability to concentrate may have been affected,there is no evidence that his academic performance was negatively impacted (id.). Hisheadaches thus did not prevent him from performing "substantially all" of his usual activities, asrequired by the statute (see Jones v Norwich City School Dist., 283 AD2d 809, 812[2001]). Concur—Sweeny, J.P., Moskowitz, Renwick, DeGrasse and RomÁn, JJ.