MANISCALCO v. THOMAS (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated January 29, 2021.  The order, insofar as appealed from, granted the plaintiff's cross-motion for summary judgment determining that he sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained in a motor vehicle accident.  The plaintiff cross-moved for summary judgment determining that he sustained a serious injury to his tooth within the meaning of Insurance Law § 5102(d) as a result of the accident.  In support of his cross-motion, the plaintiff submitted, among other things, an affirmation from Robert L. Labaito, a dentist, who examined the plaintiff and took X rays of the plaintiff's mouth.  Labaito opined that the plaintiff sustained a fractured tooth that required bonding, and that the injury was caused by the accident.  In an order dated January 29, 2021, the Supreme Court, inter alia, granted the plaintiff's cross-motion.  The defendant appeals.

Contrary to the defendant's contention, the plaintiff met his prima facie burden of demonstrating that he sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).  The plaintiff submitted competent medical evidence establishing, prima facie, that he sustained a fractured tooth as a result of the accident (see Chatoorang v. Navarrete–Duque, 105 A.D.3d 518, 519, 963 N.Y.S.2d 108;  Moffitt v. Murray, 2 A.D.3d 1110, 768 N.Y.S.2d 685;  see also Eisenberg v. Cope Bestway Express, Inc., 131 A.D.3d 1198, 1201, 17 N.Y.S.3d 457;  Newman v. Datta, 72 A.D.3d 537, 899 N.Y.S.2d 47;  Tagger v. Olympic Van Line, Inc., 38 A.D.3d 646, 830 N.Y.S.2d 673;  cf.  Sarnelli v. City of New York, 181 A.D.3d 623, 625, 120 N.Y.S.3d 358;  Epstein v. Butera, 155 A.D.2d 513, 515, 547 N.Y.S.2d 374).  In opposition, the defendant failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted the plaintiff's cross-motion for summary judgment determining that he sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident.

MILLER, J.P., CHRISTOPHER, WARHIT and WAN, JJ., concur.