Lichtman v. Heit

• Decision Date: 31 December 2002
• Citation: 752 N.Y.S.2d 649,300 A.D.2d 242
• Parties: ALAN LICHTMAN et al., Respondents,<BR>v.<BR>RUSSELL HEIT, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

300 A.D.2d 242

752 N.Y.S.2d 649

ALAN LICHTMAN et al., Respondents,

v.RUSSELL HEIT, Appellant, et al., Defendants.

Decided December 31, 2002.

Concur — Ellerin, Lerner, Rubin and Gonzalez, JJ.

Defendant Russell Heit's motion to dismiss the complaint on the ground that plaintiff Alan Lichtman did not sustain serious injury as required by Insurance Law § 5102 (d) was appropriately denied. The moving papers fail to establish appellant's right to judgment as a matter of law (see Smith v Wetzel, 294 AD2d 488). Appellant's neurologist's affirmation and report, submitted in support of the motion, includes a finding of "neuralgia paresthetica," denoting severe, stabbing or throbbing pain in the course or distribution of a nerve, involving numbness and tingling in the affected extremity (Stedman's Medical Dictionary 1206, 1316 [27th ed 2000]). This finding is consistent with that of the injured plaintiff's treating physician, who diagnosed the condition as meralgia paresthetica, "burning pain * * * along the lateral aspect of the thigh in the distribution of the lateral femoral cutaneous nerve due to entrapment of that nerve; affected skin area is often hyperesthetic" (id. at 1093), that is, hypersensitive. A diagnosis of meralgia paresthetica based partly upon subjective complaints of pain will support a determination of serious injury when substantiated by medical testimony (see Paternoster v Drehmer, 260 AD2d 867, 869). As in Paternoster, the diagnosis is uncontroverted and supported by the objective pin-prick test disclosing sensitivity along the affected nerve. Testing also disclosed some limitation in range of motion of the right leg, albeit modest.

The conclusions stated by one of appellant's doctors that Mr. Lichtman's condition is "not usually attributed to the kind of trauma described in this accident" is merely speculative. The opinion of another doctor that "there is no impact of this particular finding on daily activities" is unsupported by his objective medical finding of "hyp[er]esthesia to pin over the lateral aspect of the right thigh corresponding to the distribution of the lateral cutaneous nerve of the thigh" and otherwise improper. As this Court stated in Singh v Kolcaj Realty Corp. (283 AD2d 350, 351), "Where the offered proof intrudes upon the exclusive prerogative of the court to render a ruling on a legal issue, the attempt by a [party] to arrogate to himself a judicial function under the guise of expert testimony will be rejected (Sawh v Schoen, 215 AD2d 291, 293-294; see also Lipton v Kaye, 214 AD2d 319, 322-323)." Accordingly, appellant failed to satisfy his initial burden to establish that Alan Lichtman did not sustain a serious injury, and denial of appellant's application is required, "without regard to the quality of plaintiff's opposition papers" (Pisasale v Buckhorn Carriers, 249 AD2d 157, 158).

Tom, J.P., dissents in a memorandum as follows:

Insofar as I conclude that the necessary showing of "serious injury" is not established prima facie, I would reverse and dismiss. Accordingly, I dissent.

Plaintiff was involved in an automobile accident on the Grand Concourse on May 15, 1998. He testified at his deposition that the accident occurred at about 4:10 P.M. while he was on his way home from work, and that it occurred in bumper-to-bumper conditions, necessarily describing a slow pace of traffic. He also testified that three vehicles were involved, that he was hit in the rear and then he hit a street barricade apparently connected with street repair. As a result of the impact, he claimed that his body moved forward and then backward, leading to back injuries and nerve damage to his upper leg. He did not seek medical help after the accident, even though an ambulance was at the scene, and he drove home. The following morning, he awoke with back pain and then sought treatment at a local hospital. No MRIs or X rays were taken, and he was prescribed a muscle relaxer. About two weeks later, he was seen by his physician, a Dr. Bouchard, who, after prescribing a muscle relaxer, told plaintiff that he could work but that it would take a while for the back to heal. Physical therapy was recommended. Plaintiff went out on disability and undertook a 10-week course of heat and ultrasound treatment. After completion of this treatment, he was told that he could return to work. An orthopedist to whom plaintiff was referred, Dr. George, found no permanent spinal injuries but soft tissue injury that would take a while to heal. Dr. George referred plaintiff to a neurologist, Dr. Babigian, to examine complaints of leg pain. Dr. Babigian diagnosed meralgia paresthesia and prescribed a pain reliever. These examinations were in 1998. No further medical treatment was sought until around the time the present action was filed.

Plaintiff, in his bill of particulars, claimed a lumbo-sacral sprain, a cervical sprain, pain to his spinal cord and a contusion of the right hip. At the time of his deposition, plaintiff claimed to suffer only leg pain, though he claimed that the discomfort interferes with going to malls and work in his yard and occasionally requires plaintiff to sit down until the pain passes. He testified that he missed one week of work following the accident (five work days), and another nine weeks (45 work days) while he was on disability, after which he was advised to return to work. This totals 50 work days in which he could not undertake his usual work.

Defendant Heit owned and operated one of the vehicles involved, defendant Hansen owned and operated another vehicle involved, and defendant Co-Star Contracting Co. was involved in maintenance and repair operations at the location of the accident.

Defendants moved for summary judgment dismissing the complaint for plaintiff's failure to adequately establish serious injury under Insurance Law § 5102 (d). That statute defines "serious injury" as a personal injury that includes death; dismemberment; significant disfigurement; a fracture; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a nonpermanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident.

Once defendants moved for summary judgment, plaintiff bore the burden of refuting the allegations that he had not suffered a serious injury by submitting prima facie proof of serious injury. Plaintiff's evidence does not meet this threshold under any of the delineated theories.

An...