| Smith v Reeves |
| 2012 NY Slip Op 04856 [96 AD3d 1550] |
| June 15, 2012 |
| Appellate Division, Fourth Department |
| Linda Lee Smith, Respondent, v Ronald B. Reeves, Jr., et al.,Appellants. |
—[*1] Law Office of Susan B. Owens, White Plains (Paul J. Catone of counsel), fordefendants-appellants Pharmalogic Syracuse, LLC and Wendy Ladue. Greene & Reid, PLLC, Syracuse (Jeffrey G. Pomeroy of counsel), forplaintiff-respondent.
Appeals from an order of the Supreme Court, Onondaga County (John C. Cherundolo, A.J.),entered June 20, 2011. The order denied the motion of defendants Ronald B. Reeves, Jr. andNola M. Reeves and the cross motion of defendants Pharmalogic Syracuse, LLC and WendyLadue for summary judgment dismissing the complaints.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion and cross motion are granted and the complaints are dismissed.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustainedwhen the vehicle in which she was a passenger, owned by defendant Nola M. Reeves andoperated by defendant Ronald B. Reeves, Jr., collided at an intersection with a vehicle owned bydefendant Pharmalogic Syracuse, LLC and operated by defendant Wendy Ladue. Defendantsmoved and cross-moved for summary judgment dismissing the respective complaints againstthem on the ground that plaintiff did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d), and Supreme Court denied the motion and cross motion. On appeal,plaintiff's brief limits the categories under which she claims a serious injury to the permanentconsequential limitation of use and significant limitation of use categories of serious injury, andwe therefore deem abandoned her prior claims that she sustained a serious injury under othercategories as well (see Ciesinski v Town of Aurora, 202 AD2d 984 [1994]). We reverse.
Plaintiff alleges that she sustained a traumatic brain injury in the accident that has resulted insymptoms of postconcussion syndrome and a "chorea-like" movement disorder of her distalextremities. We note that we have long recognized the subjective nature of complaints associatedwith a claim of postconcussion syndrome (see Costa v Billingsley, 127 AD2d 990, 991[1987]). Defendants contend that the fact that plaintiff did not seek or receive any medical [*2]treatment for 10 months following the accident renders any findingon the issue of causation speculative. We agree (cf. Perl v Meher, 18 NY3d 208, 217-218 [2011]). We rejectplaintiff's characterization of that void in medical treatment, with which the court agreed, as a"gap in treatment" (see generallyPommells v Perez, 4 NY3d 566, 574 [2005]). Indeed, rather than a "gap in treatment,"plaintiff received no treatment contemporaneous with the accident and the injuries she claims tohave sustained therein (cf. Perl, 18 NY3d at 217-218). Further, the record establishes thatnone of the objective imaging tests and scans performed on plaintiff's head and brain hasrevealed a medically determined injury (see Alcombrack v Swarts, 49 AD3d 1170, 1172-1173 [2008]).Defendants submitted the affirmation and report of the physician who examined plaintiff atdefendants' request, who stated that the only objective test for delayed diagnosis ofpostconcussion syndrome is a Cerebral SPECT scan. It is undisputed that plaintiff's SPECT scanwas within "normal limits." The physician further opined that, based upon the lack of medicaltreatment for 10 months following the accident, the negative SPECT scan and the lack ofobjective findings, plaintiff's neurological symptoms, including those described by someproviders in the medical records as "post concussional Chorea," were not caused by the accident.In addition, defendants submitted the affirmation of another physician who examined plaintiffand concluded that, based upon the normal findings in the SPECT and MRI scans, "a posttraumatic brain injury has been ruled out." Thus, defendants met their initial burden on themotion and cross motion by establishing the "absence of admissible [objective] evidence thatplaintiff suffered a serious injury . . . when the accident occurred" (Perez v Rodriguez, 25 AD3d 506,509 [2006]).
The affirmation of plaintiff's treating physician, who examined plaintiff 10 months after theaccident, is insufficient to raise an issue of fact because it fails to address the absence ofobjective findings on the CT, SPECT and MRI scans, relies upon subjective complaints oftenderness and headaches (see Alcombrack, 49 AD3d at 1171-1172), and does notcontain an adequate assessment of how the alleged "chorea-like" injuries were related to theaccident—particularly in light of the complete absence of any contemporaneous orobjective findings on the various scans of plaintiff's brain (see generally Toure v Avis Rent ACar Sys., 98 NY2d 345, 350-351 [2002]; Smith v Besanceney, 61 AD3d 1336, 1337-1338 [2009];Fitzmaurice v Chase, 288 AD2d 651, 653-654 [2001]; Kristel v Mitchell, 270AD2d 598, 599 [2000]). Thus, the opinion of plaintiff's treating physician that her neurologiccondition is causally related to the accident is speculative and conclusory and thereforeinadequate to raise an issue of fact (see Franchini v Palmieri, 307 AD2d 1056, 1058[2003], affd 1 NY3d 536 [2003]; Clark v Basco, 83 AD3d 1136, 1138-1139 [2011]). Similarly, theaffirmation of another physician submitted by plaintiff fails to address the absence of objectivefindings on the SPECT, CT and MRI scans and does not contain an adequate assessment of howthe alleged "chorea-like" injuries were related to the accident and is therefore insufficient to raisean issue of fact. Present—Scudder, P.J., Fahey, Lindley and Martoche, JJ.