Moffitt v. Murray

Kane, J. Appeals (1) from an order of the Supreme Court (Moynihan, Jr., J.), entered December 4, 2002 in Warren County, which granted defendant’s motion for summary judgment dismissing the complaint, and (2) from an order of said court, entered March 27, 2003 in Warren County, which, upon reargument, partially adhered to its prior decision. Plaintiff Susan E. Moffitt (hereinafter plaintiff) and defendant were involved in a motor vehicle accident. The next day, plaintiff complained to her physician of pain in her back, neck and arms. She also visited her dentist, who took X rays which disclosed two fractured teeth. After discovery in this personal injury action, defendant moved for summary judgment alleging that plaintiffs failed to meet the serious injury threshold of Insurance Law § 5102 (d). Supreme Court granted the motion. Upon reargument, the court modified its decision by dismissing the complaint with the exception of the portion “seeking damages for the fractured teeth.” Plaintiffs appeal both orders. Fractured teeth constitute a serious injury (see Kennedy v Anthony, 195 AD2d 942, 943-944 [1993]). Once a serious injury is established, plaintiff is “entitled to recover any damages proximately caused by the accident” (Cerniglia v Wisniewski, 267 AD2d 660, 661 [1999]; see Deyo v Laidlaw Tr., 285 AD2d 853, 854 [2001]). Thus, the court should not have confined plaintiffs potential recovery to damages related to the fractured teeth. Mercure, J.P., Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the orders are modified, on the law, with costs to plaintiffs, by reversing so much thereof as granted any part of defendant’s motion for summary judgment; motion denied in its entirety; and, as so modified, affirmed.