BEBRY v. FARKAS-GALINDEZ

ORDERED that the judgment is reversed, on the law, and a new trial is granted on the issue of damages only, with costs to abide the event.

The plaintiff sustained a fractured foot and other injuries in an automobile accident. During the damages trial, the Supreme Court charged the jury that the plaintiff sustained a fractured foot as a matter of law. Since a fracture is included within the statutory definition of "serious injury" (see, Insurance Law § 5102[d]; Kolios v. Znack, 237 A.D.2d 333), the Supreme Court erred in instructing the jury to determine, inter alia, whether the plaintiff sustained a permanent consequential limitation of his foot.

Moreover, the Supreme Court erred in instructing the jury to determine whether the plaintiff's sternum was fractured and whether the plaintiff sustained a permanent consequential limitation of his sternum . "If a plaintiff establishes a prima facie case that any one of several injuries that he or she sustained in an accident is a `serious injury' within the meaning of Insurance Law § 5102(d), he or she is entitled to seek recovery for all injuries incurred as a result of the accident" (O'Neill v. O'Neill, 261 A.D.2d 459, 460; Preston v. Young, 239 A.D.2d 729, 731 n *; Kelley v. Balasco, 226 A.D.2d 880). Under the circumstances, a new trial is required.

In light of this determination, we need not reach the plaintiff's remaining contentions.