                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: February 16, 2017                    522813
________________________________

TROY J. RODMAN,
                      Appellant,
     v                                       OPINION AND ORDER

FRANK J. DEANGELES,
                    Respondent.
________________________________


Calendar Date:    November 21, 2016

Before:   McCarthy, J.P., Lynch, Rose, Clark and Aarons, JJ.

                              __________


      Lynn Law Firm, LLP, Syracuse (Patricia A. Lynn-Ford of
counsel), for appellant.

      Law Office of Keith D. Miller, Liverpool (Keith D. Miller
of counsel), for respondent.

                              __________


Clark, J.

      Appeals (1) from an order of the Supreme Court (Rumsey,
J.), entered December 9, 2015 in Cortland County, which granted
defendant's motion to set aside a verdict in favor of plaintiff
and dismissed the complaint, and (2) from the judgment entered
thereon.

      On June 7, 2011, defendant's vehicle struck plaintiff's
parked car as plaintiff was unloading items from his vehicle,
thereby causing plaintiff's vehicle to strike plaintiff and
"send[] him a distance through the air and onto the sidewalk."
Plaintiff struck the back of his head against the curb, knocking
him unconscious and causing a three centimeter laceration on his
scalp that required five staples. Plaintiff thereafter commenced
this action, alleging that he sustained a serious injury as a
                              -2-                522813

result of defendant's negligence. Following joinder of issue and
discovery, defendant conceded the issue of liability and the
matter proceeded to trial solely on the issue of whether
plaintiff sustained a serious injury within the meaning of
Insurance Law § 5102 (d). Supreme Court denied defendant's
motion to dismiss the complaint at the close of all the proof,
and the jury ultimately returned a verdict for plaintiff finding
that, as a result of defendant's negligence, plaintiff had
sustained a permanent consequential limitation of use of a body
organ or member and a significant limitation of use of a body
function or system.1 Supreme Court subsequently granted
defendant's motion to set aside the verdict on the basis that it
was not supported by legally sufficient evidence and dismissed
the complaint (see CPLR 4404 [a]). Plaintiff appeals from
Supreme Court's order, as well as the judgment entered thereon.

      "[T]he legislative intent underlying the No-Fault Law was
to weed out frivolous claims and limit recovery to significant
injuries" (Dufel v Green, 84 NY2d 795, 798 [1995]; see Toure v
Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]; see also Licari v
Elliot, 57 NY2d 230, 234-235 [1982]). With this legislative
purpose in mind, the Court of Appeals has held that where, as
here, a plaintiff seeks to satisfy the statutory serious injury
threshold under the permanent consequential limitation of use or
the significant limitation of use categories, he or she must
proffer objective medical evidence "involv[ing] a comparative
determination of the degree or qualitative nature of [the] injury
based on the normal function, purpose and use of the body part"
(Dufel v Green, 84 NY2d at 798; see Toure v Avis Rent A Car Sys.,
98 NY2d at 353). The required "comparative determination" may be
established by either "an expert's designation of a numeric
percentage of a plaintiff's loss of range of motion" or "[a]n
expert's qualitative assessment of a plaintiff's condition . . .,


    1
        The jury, however, found against plaintiff on the issue
of whether he sustained a medically determined injury or
impairment of a nonpermanent nature that prevented him from
performing substantially all of the material acts which
constituted his customary daily activities for 90 out of the 180
days immediately following the accident.
                              -3-                522813

provided that the evaluation has an objective basis and compares
the plaintiff's limitations to the normal function, purpose and
use of the affected body organ, member, function or system"
(Toure v Avis Rent A Car Sys., 98 NY2d at 350; see Simpson v
Feyrer, 27 AD3d 881, 882 [2006]; John v Engel, 2 AD3d 1027, 1029
[2003]). "[S]ubjective complaints alone are not sufficient" to
meet the threshold (Toure v Avis Rent A Car Sys., 98 NY2d at 350;
see Perl v Meher, 18 NY3d 208, 216 [2011]).

      Here, the trial evidence undisputedly demonstrated that
plaintiff sustained a severe head wound as a result of the
accident. Immediately following the crash, plaintiff was
discovered lying on the ground in a pool of blood, which was
flowing from the back of his head, and plaintiff reported that he
was briefly knocked unconscious. The responding paramedic
testified that plaintiff's head wound had "exposed fatty tissue,"
which indicated to him that plaintiff had sustained "a pretty
good blow to the head," and that the collision must have had
"great kinetic force" because it had knocked plaintiff out of his
shoes. The paramedic further stated that plaintiff immediately
complained of a severe headache, dizziness and increasing
sensitivity to light and sound. At the emergency room, five
staples were required to close the gash on plaintiff's scalp, and
plaintiff remained in the hospital for two nights.

      As to the medical evidence, at least three separate
physicians examined plaintiff and determined that he sustained a
traumatic brain injury – commonly known as a concussion – as a
result of the accident and that he continued to suffer from post-
concussive syndrome thereafter. Plaintiff's longtime primary
care physician, who had known plaintiff since 1994, examined
plaintiff one week after the accident and continued to treat him
every two to three months through the date of trial for his
ongoing complaints of dizziness, vertigo, chronic headaches,
vision issues and impaired balance, memory and concentration.
Plaintiff's primary care physician testified that, prior to the
accident, plaintiff was a "[v]ery active" person with no physical
or mental limitations. Relying on his knowledge of plaintiff's
preaccident status as a point of reference, the primary care
physician testified that he personally observed a "slow[ing]" of
plaintiff's mental and physical faculties after the accident.
                              -4-                522813

Specifically, he testified that he had observed plaintiff wince
his eyes in pain, struggle to focus and make eye contact, exhibit
signs of decreased concentration, have difficulty with problem
solving and word retrieval and experience balance issues. The
primary care physician testified that, overall, the functionality
of plaintiff's brain had "been limited" in that he was "[n]ot as
quick" and his "candle [was] burning a little dimmer than what it
used to be." When asked to support his opinion that plaintiff
had a significant brain limitation, the primary care physician
stated that plaintiff had suffered "decreased cognition, [a]
decrease in focus with vision, [and a] decrease in some physical
ability." Considering the foregoing, the jury was not required
to reach the dissent's conclusion that the primary care physician
was merely parroting the statutory language when he indicated
that plaintiff suffered a significant limitation to his brain, as
a valid line of reasoning and permissible inferences would
support the conclusion that the primary care physician's
assertion that such limitation was significant was based on his
assessment of the combined cognitive and physical functioning
decreases that he described.

      The record also established that plaintiff was treated at
the Upstate Concussion Center on an outpatient basis beginning in
July 2011. A rehabilitation psychologist performed an initial
psychological examination on plaintiff in July 2011 and a
psychological reevaluation in May 2013 and diagnosed plaintiff as
having sustained a concussion during the accident and as
suffering from several "physical, cognitive, and emotional
symptoms that are consistent with post-concussion sequelae."
During both examinations, the psychologist observed that
plaintiff had a reduced language "processing speed." The nurse
practitioner responsible for coordinating plaintiff's care at the
concussion center testified that a concussion is "an alteration
in the normal brain function due to trauma" (emphasis added) and
that symptoms of postconcussion sequela include, among other
things, headaches, dizziness, vision changes, issues with balance
and cognitive changes. The nurse practitioner further explained
that plaintiff received physical therapy to address balance
issues, occupational therapy for vision rehabilitation and
cognitive therapy for plaintiff's memory and concentration
impairments. The physical and occupational therapy records
                              -5-                522813

demonstrated that plaintiff experienced some limited quantitative
improvements in his balance, memory and concentration, but
continued to suffer from cognitive impairments at the end of his
treatment.2

      With respect to permanency, plaintiff's primary care
physician and the nurse practitioner each testified that symptoms
stemming from head trauma are generally permanent if they
continue to present more than 12 to 18 months after the injury-
producing event. Here, as plaintiff's symptoms persisted more
than four years after his accident, both the primary care
physician and the nurse practitioner opined that plaintiff had
sustained a permanent limitation of his cognitive functioning.

      While the CT scan taken of plaintiff's brain at the
hospital immediately following the accident revealed a large
hematoma on the back of his scalp, that CT scan, as well as a
subsequent scan, did not show any brain abnormalities. However,
plaintiff's primary care physician explained, without
contradiction, that the negative scans were not out of the
ordinary because "usually no . . . injury can be seen on a CT
scan," and the nurse practitioner similarly testified that the
majority of concussions do not show up on imaging. In addition,
although the primary care physician acknowledged that plaintiff's
reported and ongoing complaints were subjective in nature, he
testified that a concussion, by its very definition, is a
subjective diagnosis. The nurse practitioner similarly testified
that a concussion diagnosis is a clinical diagnosis that
necessarily relies on a patient's subjective complaints, as well
as the patient's medical history and certain inclusion criteria.




    2
        For instance, plaintiff's occupational therapy records
indicated that plaintiff was repeatedly able to recall five out
of five items on a grocery list, but was unable to achieve the
goal of recalling 7 out of 10 items on a grocery list.
                              -6-                522813

      Notwithstanding the negative scans, the absence of
neurological testing3 and the subjectivity of plaintiff's
complaints, many of plaintiff's reported symptoms, including his
impaired concentration and balance and difficulty with problem
solving and word retrieval, were objectively and personally
observed by plaintiff's primary care physician, who had the
necessary historical knowledge and ability to compare his
clinical, postaccident observations of plaintiff's condition to
his prior observations of plaintiff's preaccident condition (see
Toure v Avis Rent A Car Sys., 98 NY2d at 353 [clinical
observations of a plaintiff's limitations may constitute
objective medical evidence]). Contrary to the dissent's
assertion, the primary care physician's treatment and assessment
of plaintiff's injuries were also informed by his review of the
medical records of the rehabilitation psychologist and
plaintiff's physical and occupational therapists, which
documented their objective observations of plaintiff's physical
and cognitive deficiencies and limited improvements over a period
of nearly two years. Moreover, the bases for the primary care
physician's qualitative assessment of the seriousness of
plaintiff's injury, including his observations of plaintiff's
preaccident and postaccident conditions, as well as the accuracy
of his memory, could "be tested during cross-examination,
challenged by another expert and weighed by the trier of fact"
(id. at 351; see Dufel v Green, 84 NY2d at 798).4

      In our view, the comparative determination of plaintiff's
primary care physician, taken together with plaintiff's defined


    3
        Objective testing is not required to support an expert's
qualitative assessment that a plaintiff sustained a consequential
or significant limitation of use; all that is required is that
the qualitative assessment have an "objective basis and compare[]
the plaintiff's limitations to the normal function, purpose and
use of the affected body organ, member, function or system"
(Toure v Avis Rent A Car Sys., 98 NY2d at 350).
    4
        Defendant did not present any expert testimony as to
plaintiff's head injury; the opinion testimony of defendant's
expert was strictly limited to plaintiff's orthopedic injuries.
                              -7-                522813

head wound and subjective complaints immediately after the
accident and continuing four years later, provided the jury with
a valid line of reasoning and permissible inferences that could
lead it to the rational conclusion that plaintiff suffered a
permanent consequential limitation of use of a body organ or
member and a significant limitation of use of a body function or
system (see generally Toure v Avis Rent A Car Sys., 98 NY2d at
350; cf. Viscusi v Ostrowski, 25 Misc 3d 1213[A], 2007 NY Slip Op
52652[U], *4 [Sup Ct, Schenectady County 2007], affd for reasons
stated below 53 AD3d 965 [2008]; compare Rumford v Singh, 130
AD3d 1002, 1003-1004 [2015]). Accordingly, Supreme Court erred
in granting defendant's posttrial motion to set aside the jury's
verdict and the verdict must be reinstated.

     McCarthy, J.P., Lynch and Aarons, JJ., concur.


Rose, J. (dissenting).

      While I agree with the majority that there is sufficient
medical proof indicating that plaintiff suffered a concussion as
a result of the 2011 accident, the concussion itself is not at
issue here. Rather, the issue is whether, at trial, plaintiff
adduced the type of objective, qualitative proof of his resulting
physical and cognitive limitations necessary to measure the
seriousness of those limitations and meet the standard set forth
in Toure v Avis Rent A Car Sys. (98 NY2d 345 [2002]). I cannot
agree that the proof presented by plaintiff meets the Toure
standard and, therefore, I respectfully dissent.

      In Toure, the Court of Appeals emphasized that, in the
absence of numerical measurements, an expert's "qualitative
assessment of a plaintiff's condition" is sufficient to establish
the extent or degree of limitation so long as "the evaluation has
an objective basis and compares the plaintiff's limitations to
the normal function, purpose and use of the affected body organ,
member, function or system" (id. at 350; see Perl v Meher, 18
NY3d 208, 217 [2011]). Toure clarified that, before the trier of
fact can find that a plaintiff suffered a serious injury within
the meaning of Insurance Law § 5102 (d), there must be objective
medical evidence to substantiate the claimed limitation and an
                              -8-                522813

expert must undertake a "'comparative determination'" of the
degree or qualitative nature of the injury in relation to normal
functioning (Toure v Avis Rent A Car Sys., 98 NY2d at 353,
quoting Dufel v Green, 84 NY2d 795, 798 [1995]). Toure noted
that, without objective medical evidence, "the legislative intent
of the No-Fault Law to eliminate statutorily-insignificant
injuries" is frustrated (Toure v Avis Rent A Car Sys., 98 NY2d at
351). In addition, Toure emphasized that, if a limitation is
assessed as "'minor, mild or slight'" when compared to normal
functioning, it does not qualify as a serious injury (id. at 353,
quoting Licari v Elliott, 57 NY2d 230, 236 [1982]; see DeHaas v
Kathan, 100 AD3d 1057, 1058 [2012]; Womack v Wilhelm, 96 AD3d
1308, 1311 [2012]). In my view, these requirements were not met
here and, as a result, the majority has strayed from the standard
set forth in Toure in finding that the verdict was supported by
legally sufficient evidence.

      Despite the majority's characterization of the evidence as
"objectively observed," plaintiff's longtime primary care
physician readily acknowledged that "virtually all" of
plaintiff's complaints were subjective in nature, that "all of
the diagnostics of [plaintiff's] head have come out normal" and
that the neurologist and neuro-opthalmologist that he referred
plaintiff to did not find anything objectively wrong with him.
To the extent that the physician can be said to have compared
plaintiff's limitations to plaintiff's pre-accident functioning,
the physician did no more than describe plaintiff as "[n]ot as
quick." The physician went on to explain that plaintiff's
"candle is burning a little dimmer than what it used to be, so
he's a little slower in cognition and a little slower
physically." As a comparative determination, the physician's
reliance on the phrase "a little" suggests a limitation that is
synonymous with "minor, mild or slight." Even when plaintiff's
counsel parroted the statutory language defining serious injury
by asking if plaintiff had "suffered a significant limitation of
his brain," and the physician responded "yes" (see Dean v Ahn Ja
Jin, 78 AD3d 1297, 1299 [2010]; Licygiewicz v Stearns, 61 AD3d
1254, 1255 [2009]), the physician did not change his prior
testimony or opine that the combined impact of "a little slower"
cognitive and physical functioning would, together, increase the
measure or seriousness of plaintiff's claimed limitations
                              -9-                522813

(compare Viscusi v Ostrowski, 25 Misc 3d 1213[A], 2007 NY Slip Op
52652[U], *4 [Sup Ct, Schenectady County 2007], affd for reasons
stated below 53 AD3d 965 [2008]).

      As for the testimony of the nurse practitioner who
coordinated plaintiff's care at the Upstate Concussion Center, he
described a concussion as synonymous with "mild traumatic brain
injury." In addition, he conceded that no neuropsychological
testing was performed on plaintiff, despite the fact that testing
does exist that could have been used to objectively confirm if
plaintiff did, in fact, suffer more than "a little" cognitive
deficit. While the nurse practitioner testified that plaintiff
was still symptomatic 18 months after the accident, he conceded
that, because no testing was done, plaintiff's continued
treatment was solely based upon his "report that he was having
cognitive difficulties." A review of plaintiff's medical records
from the Upstate Concussion Center reveals that, although a
psychologist found that plaintiff suffered "several physical,
cognitive, and emotional symptoms that are consistent with post-
concussion sequelae," the psychologist offered no comparative
determination or qualitative assessment and failed to set forth
any objective testing that was done to confirm her findings or
describe the evidence upon which she based her conclusion, aside
from plaintiff's subjective complaints.

      Despite the Toure requirements, the medical opinions
regarding the present limitation to plaintiff's cognitive and
physical functioning are based on his actions and complaints,
which are subjective in nature, rather than objectively based
medical testing (cf. Houston v Hofmann, 75 AD3d 1046, 1048-1049
[2010]; Villeda v Cassas, 56 AD3d 762, 763 [2008]; compare
Flanders v National Grange Mut. Ins. Co., 124 AD3d 1035, 1036-
1038 [2015]). It is undisputed that no objective medical testing
was performed on plaintiff in order to confirm his subjective
symptoms, aside from a CAT scan and X ray that did not disclose
any abnormalities. Although the nurse practitioner testified
that neurological diagnostic testing was available, there was no
                              -10-                 522813

explanation as to why it was not utilized.1 In addition, the
testimony of the nurse practitioner makes clear that he undertook
no "'comparative determination'" to measure the severity of
plaintiff's present limitations so as to enable the jury to
determine whether they qualify as significant or consequential
(Toure v Avis Rent A Car Sys., 98 NY2d at 353, quoting Dufel v
Green, 84 NY2d at 798; see June v Gonet, 298 AD2d 811, 813
[2002]).

      In sum, I cannot agree that the medical evidence relied
upon by the majority supports the conclusion that plaintiff
presented legally sufficient evidence to sustain the jury verdict
in his favor. Accordingly, I would affirm Supreme Court's order
and judgment setting aside the verdict.



      ORDERED that the order and judgment are reversed, on the
law, with costs, motion denied and verdict reinstated.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court


    1
        This is not to suggest that neurological or diagnostic
testing is always required to establish a claim of a serious
brain injury. Rather, here, because the medical providers who
examined plaintiff did not base their assessments on anything
other than plaintiff's subjective actions and complaints, medical
testing would have provided an objective way for the medical
providers to substantiate those subjective symptoms (see e.g.
Flanders v National Grange Mut. Ins. Co., 124 AD3d at 1037).
