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

1464
CA 12-01207
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND MARTOCHE, JJ.


THERESA A. SMYTH AND JOSEPH M. ZABLOTSKY,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

BENJAMIN J. MCDONALD, BARBARA F. MCDONALD AND
EARL L. MCDONALD, DEFENDANTS-APPELLANTS.


ADAMS, HANSON, REGO, CARLIN, HUGHES, KAPLAN & FISHBEIN, WILLIAMSVILLE
(BETHANY A. RUBIN OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

THE CAREY FIRM, LLC, GRAND ISLAND (SHAWN W. CAREY OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Frederick
J. Marshall, J.), entered October 19, 2011 in a personal injury
action. The order denied defendants’ motion for summary judgment.

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

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries Theresa A. Smyth (plaintiff) allegedly sustained when a
vehicle owned by defendants Barbara F. McDonald and Earl L. McDonald
and operated by defendant Benjamin J. McDonald rear-ended her vehicle
in October 2006. Supreme Court erred in denying defendants’ motion
for summary judgment dismissing the complaint on the ground that
plaintiff did not sustain a serious injury within the meaning of
Insurance Law § 5102 (d). With respect to the permanent consequential
limitation of use and significant limitation of use categories of
serious injury allegedly sustained by plaintiff, defendants met their
initial burden on the motion by submitting, inter alia, the records
concerning medical treatment received by plaintiff immediately
following the accident, which establish that plaintiff did not sustain
a traumatic injury and that there was an unexplained gap in treatment
after plaintiff’s last physical therapy visit in January 2007.
Plaintiff next sought treatment with her primary care physician in
August 2009 and thereafter resumed physical therapy. Defendants
contend that the 31-month gap in plaintiff’s treatment is fatal to her
claim that she sustained a serious injury within the meaning of those
two categories of serious injury. We agree. We conclude that
plaintiffs failed to raise a triable issue of fact to defeat the
motion with respect to those two categories. Plaintiffs submitted,
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                                                         CA 12-01207

inter alia, the affidavit of a physician who treated plaintiff for her
back condition for the first time in October 2009, but they failed to
provide a reasonable explanation for the lengthy gap in treatment (see
Pommells v Perez, 4 NY3d 566, 574). Thus, although the treating
physician provided objective medical evidence that plaintiff was
injured, the 31-month gap in treatment renders his opinion as to
causation purely speculative (see Smith v Reeves, 96 AD3d 1550, 1551).
Plaintiff stopped attending physical therapy in early 2007 because her
primary care physician would not provide a new prescription for
physical therapy and instead recommended that plaintiff engage in a
pain management program. Plaintiff asserted that she chose not to
engage in the pain management program because she thought that she
would have to take narcotic medication, which she was not willing to
do, and she hoped that her injury would heal on its own over time.
That, however, is not a reasonable explanation for the 31-month gap in
treatment, which fatally undermines plaintiffs’ claim of serious
injury with respect to the permanent consequential limitation of use
and significant limitation of use categories of serious injury (see
Semonian v Seidenberg, 71 AD3d 1562, 1563; Wei-San Hsu v Briscoe
Protective Sys., Inc., 43 AD3d 916, 917; Colon v Kempner, 20 AD3d 372,
374; see generally Pommells, 4 NY3d at 574). Although plaintiffs
assert with respect to the gap in treatment that further physical
therapy would have been palliative and that plaintiff’s request for
no-fault benefits was denied, those assertions are not supported by
the record (cf. Brown v Dunlap, 4 NY3d 566, 577; Peluso v Janice Taxi
Co., Inc., 77 AD3d 491, 492).

     With respect to the significant disfigurement category of serious
injury alleged by plaintiffs, we further conclude that defendants met
their initial burden on the motion (see generally Zuckerman v City of
New York, 49 NY2d 557, 562). In addition, plaintiffs failed to raise
an issue of fact whether plaintiff sustained such an injury because
the alleged disfigurement of plaintiff’s scapula, of which in any
event there is no photograph in the record, is not readily observable
to others (see Mahar v Bartnick, 91 AD3d 1163, 1166; see also Wiegand
v Schunck, 294 AD2d 839, 839), and plaintiffs did not present evidence
that “a reasonable person viewing the plaintiff’s [scapula] in its
altered state would regard the condition as unattractive,
objectionable or as the subject of pity or scorn” (O’Brien v
Bainbridge, 89 AD3d 1511, 1513 [internal quotation marks omitted]).

     Finally, with respect to the 90/180-day category of serious
injury alleged by plaintiffs, we conclude that defendants met their
initial burden by submitting plaintiff’s “medical records establishing
that there are no ‘objective medical findings of a medically
determined injury or impairment of a nonpermanent nature which caused
the alleged limitations on [her] daily activities’ within 90 of the
180 days immediately following the occurrence of the injury or
impairment” (Harrity v Leone, 93 AD3d 1204, 1205). Plaintiffs failed
to raise an issue of fact with respect to that category. The
affidavit of plaintiff’s treating physician, based upon his treatment
of plaintiff beginning three years after the accident, is “too remote
to be probative of plaintiff’s accident-related claim” and is
therefore insufficient to raise an issue of fact as to the causal link
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                                                         CA 12-01207

between plaintiff’s alleged injuries and her limitations within the
180 days following the accident (Whisenant v Farazi, 67 AD3d 535, 536;
see Smith, 96 AD3d at 1552).




Entered:   December 28, 2012                   Frances E. Cafarell
                                               Clerk of the Court
