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SUSAN E. MOFFITT ET AL., Appellants, v. KENNETH R. MURRAY, Respondent.

MEMORANDUM AND ORDER

Kane, J.

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 A.D.2d 942, 943-944). Once a serious injury is established, plaintiff is "entitled to recover any damages proximately caused by the accident" (Cerniglia v. Wisniewski, 267 A.D.2d 660, 661; see Deyo v. Laidlaw Tr., 285 A.D.2d 853, 854). Thus, the court should not have confined plaintiff's 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.

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MOFFITT v. MURRAY
(Dec 18, 2003)