Lippen v Nappi
Annotate this CaseDecided on September 28, 2004
Supreme Court, Suffolk County
Lewis H. Lippen, Plaintiff,
against
Louis R. Nappi and Jimmy's Jet Towing, Inc., Defendants.
003192/2003
John J.J. Jones, J.
ORDERED that this motion by defendants, Louis R. Nappi and Jimmy's Jet Towing, Inc., for an order granting summary judgment dismissing the complaint on the ground that the plaintiff, Lewis H. Lippen, did not sustain a "serious injury" within the meaning of NY Insurance Law § 5102(d) is denied.
Plaintiff commenced this action to recover damages for personal injuries allegedly sustained as the result of a motor vehicle accident which occurred on August 26, 2002. According to the plaintiff's deposition testimony, his vehicle was stopped in traffic when it was struck in the rear, creating an impact that was described as "heavy," which forced a second impact between his vehicle and the vehicle in front of it. In addition, plaintiff testified that there was another impact into the rear of his vehicle. No ambulances responded to the scene of the accident, but plaintiff was driven by a friend to a hospital emergency room, where he complained of a ringing in his ear and pain in his left ankle, knee, wrist and elbow. A CAT scan of the brain was negative. X-rays taken of the left wrist, elbow, knee and ankle were negative for fracture, although calcaneal spurring was seen posteriorly on the film of the left ankle. An x-ray of the cervical spine showed a straightening of the lordotic curve but no evidence of fracture. It is alleged in the bill of particulars that plaintiff suffers from "tinnitis, hearing loss in both ears . . . cervical radiculopathy, . .. Left lumbar radiculopathy . . . fusiform enlargement of several centimeters segment of distal achilles tendon representing focal tendonitis or a partial tear of the left ankle achilles tendon" and other soft tissue injuries.
In order to effectuate the purpose of no-fault legislation to reduce litigation, a court is required to decide, in the first instant, whether a plaintiff has made out a prima facie case of "serious injury" sufficient to satisfy the statutory requirements (Licari v Elliott, 57 NY2d 230, 455 NYS2d 570, 441 NE2d 1088 [1982]; Brown v Stark, 205 AD2d 725, 613 NYS2d 705 [2d Dept 1994]). If it is found that the injury sustained does not fit within the definition of "serious injury" under Insurance Law § 5102(d), then the plaintiff has no judicial remedy and the action must be dismissed [*2](Licari v Elliott, supra, at 57 NY2d 238; Velez v Cohan, 203 AD2d 156, 610 NYS2d 257 [1st Dept 1994]). A "serious injury" is defined as a personal injury which "results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; 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 non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitutes such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment." (Insurance Law § 5102 [d]).
In support of their motion for summary judgment, the defendants submitted the affirmed medical report of an otorhinolaryngologist who examined plaintiff on November 24, 2003 and found that he has a "moderate to profound sensorineural hearing loss." A review of plaintiff's medical records revealed, however, that he had a normal CAT scan of the brain when seen in the emergency room following the underlying accident and a normal otologic evaluation, leading the doctor to conclude that the hearing loss was not traumatically induced by the accident. Defendants also submitted the affirmed medical report of an orthopedist who examined plaintiff on September 16, 2003, at which time he complained of discomfort in his left ankle. Clinical examination revealed venous insufficiency in both legs with large varicose veins in his left lower leg. He had full dorsifelexion and plantarflexion as well as full inversion and eversion of the left ankle. There was a "slight fusiform swelling of approximately 2" proximal to the insertion of the Achilles tendon on the left" that was tender on palpation which, in the orthopedist's opinion, could represent tendinitis or a partial tear of the Achilles tendon. Examination of his back revealed full range of motion. The orthopedist also reviewed the medical record of plaintiff's internist who examined plaintiff on June 19, 2002, more than two months before this accident, at which time plaintiff gave a history of having been caught between a moving car and a parked vehicle. At that time, swelling and soreness of the left Achilles tendon was noted and a finding of left Achilles tendinitis was made.
Defendants also submitted the report of an examining neurologist who saw plaintiff on September 17, 2003, when he complained of pain in his left ankle, lower back and occasional neck spasm and headaches. Sensory examination revealed that plaintiff reported reduced sensation on both the right and left sides but, as the findings were inconsistent, the neurologist concluded that they did not represent neurological involvement. Motor and sensory examination did not show evidence of bilateral cervical radiculopathy or bilateral carpal tunnel syndrome. He concluded that there was no neurological evidence of an objective neurological disorder causally related to the underlying accident.
In opposition to the motion, plaintiff submitted his own affidavit in which he indicates that he first sought treatment at a hospital emergency room and then from his personal physician, who referred him to a neurologist. He complained of pain in his neck, back and left ankle and underwent physical therapy until March 2003. He used a cane to assist him in walking and claims to have been unable to engage in his usual activities through March 2003. Among the activities plaintiff claims he missed were his customary retirement activities, including walking, jogging, playing tennis, [*3]swimming and working on cars. He claims that he continues to suffer from constant moderate pain in his left Achilles tendon.
Plaintiff also submitted the affirmed medical report of his treating physiatrist, whom he initially saw on November 19, 2002 for treatment to his left ankle. A visible lump was noted on his left ankle and plaintiff made subjective complaints of an inability to engage in recreational activities. He was reported to have "severely restricted motion of the left ankle due to the injury" and sensory examination showed hypesthesia in the left lower extremity. The ankle was wrapped and plaintiff was advised to wear a "Unaboot." He was also found to have "severe limited range of motion of [plaintiff's] lumbar spine," with spasm in the left lumbar paraspinal muscles, 50 degrees forward flexion, 10 degrees extension, and 10 degrees right and left lateral flexion. He was also diagnosed with "cervical radiculopathy, left ulnar neuropathy and left lumbar radiculopathy," and range of motion testing of the head and neck showed 40 degrees left and right lateral rotation and 15 degrees left and right lateral flexion. Examination of his left ankle, however, revealed "a lump consistent with either a severe tendinitis or a tear of the Achilles tendon, or both" and left ankle flexion was measured to 120 degrees, while right ankle flexion was 150 degrees. The plaintiff was noted to have an antalgic gait. When plaintiff was last seen on September 22, 2003, it was noted that there was improvement in the ankle but, although it allegedly had not regained normal function, no specific measure of alleged disability is given.
The injured plaintiff's affidavit, the affidavit of his treating physiatrist, and other medical evidence in the record raise a triable issue of fact as to whether he sustained a medically-determined injury which prevented him from performing his usual activities for the statutory period (see Connors v Center City, Inc., 291 AD2d 476, 738 NYS2d 219 [2d Dept 2002]; see also Shifren v Scheiner, 269 AD2d 381, 702 NYS2d 377 [2d Dept 2000]). Issues of credibility about the alleged pre-existing nature of plaintiff's injuries must be resolved at trial.
DATED: September 28, 2004
HON. JOHN J.J. JONES, JR.
J.S.C.
CHECK ONE: [ ] FINAL DISPOSITION
[X] NON-FINAL DISPOSITION
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