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Newman v. Datta

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 20, 2010

KATHLEEN NEWMAN, PLAINTIFF-RESPONDENT,
v.
ASHUTUSH DATTA, ET AL., DEFENDANTS-APPELLANTS.

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.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Sweeny, Renwick, Abdus-Salaam, Manzanet-Daniels, JJ.

106161/07

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).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100420

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