Opinion
June 8, 2001.
(Appeal from Judgment of Supreme Court, Erie County, Whelan, J. — Negligence.)
PRESENT: PIGOTT, JR., P.J., HAYES, WISNER, SCUDDER AND LAWTON, JJ.
Judgment unanimously reversed on the law without costs, motion granted, verdict set aside and new trial granted.
Memorandum:
Supreme Court erred in denying plaintiff's motion to set aside the jury verdict of no cause of action as against the weight of the evidence. The jury found that plaintiff did not "sustain an injury that resulted in a fracture of the tooth". The uncontradicted evidence establishes, however, that plaintiff's tooth was fractured through the root and within the bone of the tooth's socket as a result of the motor vehicle accident at issue. Thus, the jury's finding that plaintiff did not fracture his tooth is against the weight of the evidence ( cf., Levin v. Carbone, 277 A.D.2d 951, lv denied 96 N.Y.2d 705). We further conclude that, because the court treated the fractured tooth as a serious injury in its charge without objection by either party, on this record, the fractured tooth constitutes a serious injury ( see, Freidus v. Eisenberg, 71 N.Y.2d 981, 982; see also, Insurance Law § 5102 [d]; Kennedy v. Anthony, 195 A.D.2d 942, 943).
Because the jury found that plaintiff did not sustain a serious injury, it did not reach the issues of liability or damages. We therefore reverse the judgment, grant the motion, set aside the verdict and grant a new trial. We have considered plaintiff's remaining contentions and conclude that they are without merit.