               SUPREME COURT OF THE STATE OF NEW YORK
                  Appellate Division, Fourth Judicial Department

467
CA 11-02251
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, AND MARTOCHE, JJ.


LINDA LEE SMITH, PLAINTIFF-RESPONDENT,

                    V                                     MEMORANDUM AND ORDER

RONALD B. REEVES, JR., NOLA M. REEVES,
PHARMALOGIC SYRACUSE, LLC, AND WENDY LADUE,
DEFENDANTS-APPELLANTS.


MACKENZIE HUGHES LLP, SYRACUSE (JONATHAN H. BARD OF COUNSEL), FOR
DEFENDANTS-APPELLANTS RONALD B. REEVES, JR. AND NOLA M. REEVES.

LAW OFFICE OF SUSAN B. OWENS, WHITE PLAINS (PAUL J. CATONE OF
COUNSEL), FOR DEFENDANTS-APPELLANTS PHARMALOGIC SYRACUSE, LLC AND
WENDY LADUE.

GREENE & REID, PLLC, SYRACUSE (JEFFREY G. POMEROY OF COUNSEL), FOR
PLAINTIFF-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. and Nola M. Reeves and the
cross motion of defendants Pharmalogic Syracuse, LLC and Wendy Ladue
for summary judgment dismissing the complaints.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion and cross
motion are granted and the complaints are dismissed.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when the vehicle in which she was a passenger,
owned by defendant Nola M. Reeves and operated by defendant Ronald B.
Reeves, Jr., collided at an intersection with a vehicle owned by
defendant Pharmalogic Syracuse, LLC and operated by defendant Wendy
Ladue. Defendants moved and cross-moved for summary judgment
dismissing the respective complaints against them on the ground that
plaintiff did not sustain a serious injury within the meaning of
Insurance Law § 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 permanent consequential
limitation of use and significant limitation of use categories of
serious injury, and we therefore deem abandoned her prior claims that
she sustained a serious injury under other categories as well (see
Ciesinski v Town of Aurora, 202 AD2d 984, 984). We reverse.

     Plaintiff alleges that she sustained a traumatic brain injury in
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                                                         CA 11-02251

the accident that has resulted in symptoms of postconcussion syndrome
and a “chorea-like” movement disorder of her distal extremities. We
note that we have long recognized the subjective nature of complaints
associated with a claim of postconcussion syndrome (see Costa v
Billingsley, 127 AD2d 990, 991). Defendants contend that the fact
that plaintiff did not seek or receive any medical treatment for 10
months following the accident renders any finding on the issue of
causation speculative. We agree (cf. Perl v Meher, 18 NY3d 208, 217-
218). We reject plaintiff’s characterization of that void in medical
treatment, with which the court agreed, as a “gap in treatment” (see
generally Pommells v Perez, 4 NY3d 566, 574). Indeed, rather than a
“gap in treatment,” plaintiff received no treatment contemporaneous
with the accident and the injuries she claims to have sustained
therein (cf. Perl, 18 NY3d at 217-218). Further, the record
establishes that none of the objective imaging tests and scans
performed on plaintiff’s head and brain has revealed a medically
determined injury (see Alcombrack v Swarts, 49 AD3d 1170, 1172-1173).
Defendants submitted the affirmation and report of the physician who
examined plaintiff at defendants’ request, who stated that the only
objective test for delayed diagnosis of postconcussion syndrome is a
Cerebral SPECT scan. It is undisputed that plaintiff’s SPECT scan was
within “normal limits.” The physician further opined that, based upon
the lack of medical treatment for 10 months following the accident,
the negative SPECT scan and the lack of objective findings,
plaintiff’s neurological symptoms, including those described by some
providers 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 plaintiff and concluded
that, based upon the normal findings in the SPECT and MRI scans, “a
post traumatic brain injury has been ruled out.” Thus, defendants met
their initial burden on the motion and cross motion by establishing
the “absence of admissible [objective] evidence that plaintiff
suffered a serious injury . . . when the accident occurred” (Perez v
Rodriguez, 25 AD3d 506, 509).

     The affirmation of plaintiff’s treating physician, who examined
plaintiff 10 months after the accident, is insufficient to raise an
issue of fact because it fails to address the absence of objective
findings on the CT, SPECT and MRI scans, relies upon subjective
complaints of tenderness and headaches (see Alcombrack, 49 AD3d at
1171-1172), and does not contain an adequate assessment of how the
alleged “chorea-like” injuries were related to the
accident—particularly in light of the complete absence of any
contemporaneous or objective findings on the various scans of
plaintiff’s brain (see generally Toure v Avis Rent A Car Sys., 98 NY2d
345, 350-351; Smith v Besanceney, 61 AD3d 1336, 1337-1338; Fitzmaurice
v Chase, 288 AD2d 651, 653-654; Kristel v Mitchell, 270 AD2d 598,
599). Thus, the opinion of plaintiff’s treating physician that her
neurologic condition is causally related to the accident is
speculative and conclusory and therefore inadequate to raise an issue
of fact (see Franchini v Palmieri, 307 AD2d 1056, 1058, affd 1 NY3d
536; Clark v Basco, 83 AD3d 1136, 1138-1139). Similarly, the
affirmation of another physician submitted by plaintiff fails to
address the absence of objective findings on the SPECT, CT and MRI
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                                                         CA 11-02251

scans and does not contain an adequate assessment of how the alleged
“chorea-like” injuries were related to the accident and is therefore
insufficient to raise an issue of fact.




Entered:   June 15, 2012                        Frances E. Cafarell
                                                Clerk of the Court
