[DOWNLOAD] "Lisa Epstein v. Anthony J. Butera" by Supreme Court of New York * eBook PDF Kindle ePub Free

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eBook details

• Title: Lisa Epstein v. Anthony J. Butera
• Author : Supreme Court of New York
• Release Date : January 13, 1989
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 68 KB

Description

DECISION & ORDER On December 31, 1985, the plaintiff was involved in an automobile accident and allegedly sustained certain
personal injuries. Subsequently, the plaintiff commenced a lawsuit alleging that she had sustained a "serious injury" within
the ambit of New York's "no fault" Insurance Law (see, Insurance Law § 5102). The plaintiff's bill of particulars alleges
that she sustained various soft tissue injuries and a "chipped left lower incisor". The bill of particulars further alleged
that plaintiff missed one week of work. In affidavits submitted by the plaintiff and her treating dentist, a Dr. Henry S.
Lowenstein, it was disclosed that Dr. Lowenstein's treatment consisted of filing the tooth, although he stated in his affidavit
that, "[i]f the tooth should abscess in the future because of the trauma sustained [the plaintiff] will need root canal work
and possibly a cap". Subsequently, the appellants moved for summary judgment dismissing the complaint insofar as it is asserted against them,
arguing that the plaintiff's injuries were not serious within the meaning of Insurance Law § 5102. In support of their motion,
the appellants submitted, inter alia, the affidavit of a dentist, Dr. Mavin Cohen, who examined the plaintiff's tooth and
reported, that "[t]he tooth that was allegedly chipped as a result of the accident appeared normal, in position and was firm
in its socket". Dr. Cohen further opined that "no additional dental care is required in order to restore the claimant's dentition
to proper form and function". In response to the motion, the plaintiff's attorney filed an affirmation in which she alleged
that, as diagnosed by Dr. Lowenstein, the plaintiff sustained a "distal incisal fracture of the coronal portion of her tooth",
and that "[a] fracture of a tooth is equivalent to the fracture of a bone" (see, Insurance Law § 5102[2]). The plaintiff's
counsel conceded that none of the other injuries allegedly sustained by the plaintiff could be construed as constituting a
serious injury. The Supreme Court denied the appellants' motion, reasoning, inter alia, that the tooth injury sustained by
the plaintiff was a "fracture" within the meaning of Insurance Law § 5102 and thus constituted a "serious injury" within the
meaning of the foregoing section. We disagree.

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