Preview
FILED: CHAUTAUQUA COUNTY CLERK 03/01/2023 11:27 AM INDEX NO. EK12021000391
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/01/2023
STATE OF NEW YORK
SUPREME COURT : COUNTY OF CHAUTAUQUA
RACHEAL L. CHANDLER REPLY MEMORANDUM
OF LAW
Plaintiff
-vs- Index No.: EK12021000391
Honorable: Grace M. Hanlon, J.S.C.
JESUS TORRES, JR.
Defendant
This reply memorandum of law is offered in further support of the defendant
JESUS TORRES, JR.'s motion for summary judgment pursuant to CPLR §3212
dismissing the plaintiff's complaint and in opposition to the plaintiff's arguments raised in
opposition papers. A brief recitation of the facts is set forth in the supporting affirmation
of Richard J. Zielinski, Esq.
ARGUMENT
POINT I
THE DEFENDANT HAS ESTABLISHED PRIMÄ
FACIE ENTITLEMENT TO SUMMARY JUDGMENT.
New York Insurance Law §5104(a) requires a plaintiff claiming injuries from a
motor vehicle accident to have sustained injuries that meet the statutory threshold
requirements, and failure to do so will result in dismissal. Se_e Pommells v. Perez, 4
N.Y.3d 566 (2005); Licari v. Elliot, 57 N.Y.2d 230 (1982). Whether a plaintiff has
sustained a serious injury is a matter of law to be determined by the Court. Id.
A plaintiff may establish a prima facie showing that the plaintiff has not sustained
any serious injuries through the submission of sworn affidavits or affirmations of medical
experts who have reviewed the plaintiff's medical records and films and concluded no
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objective evidence exists to support the plaintiff's claims of injury. See Grossman v.
(2nd
Wright, 268 A.D.2d 79 Dept, 2000h
Plaintiff does not contest in its opposition papers that she did not sustain a
serious injury under any threshold category aside from significant limitation of use.
Therefore, each other serious injury category must be dismissed and the adalysis at issue
on this motion will focus squarely on whether the plaintiff sustained a significant limitation
as defined by NY Ins. Law § 5120(d),
Furthermore, plaintiff's opposition does not raise any argument as to the
sufficiency of the defendanes proof to support a claim that the defendant did not meet his
Bernas'
burden. Plaintiff solely relies on her own proof, Dr. affirmation, to argue she did
in fact sustain a serious injury. Because plaintiff has not even argued a limitation in the
defendant's proof, it must be found that the defendant has met his burden.
In Jones v. Leffel, 125 A.D.3d 1451 (4th Dept. 2015), the Fourth Department held
the defendant was able to establish its prima facie burden under the significant limitation
of use category where it submitted the affirmed report of a neurologist who examined the
plaintiff, reviewed the plaintiff's medical records, and opined "that the plaintiff sustained a
cervicothoracic strain in the accident i.e. 'a soft tissue injury from which an individual could
weeks"
be expected to make a full recovery...in a matter of and that there was no
objective evidence that the plaintiff sustained a cervical disc herniation, other acute injury
or permanency.
Similarly, here, the defendant submitted the sworn affirmation of Dr. Cambareri,
an orthopedist, who reviewed the plaintiff's medical records, examined the plaintiff, and
opined that she did not sustain an injury to either hip in the subject incident, and did not
sustain a serious injury. Dr. Cambareri considered the plaintiff's treatment course, timing
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of treatment, physical activity after the accident, and records. Dr. Cambareri also
imaging
Bernas'
reviewed the entirety of Dr. medical records, discussing the November 30, 2021
report with specificity. Cambareri affirm. Ex. B at 15-16. In that record, Dr. Bernas
questions the causal relationship between the incident and the plaintiff's symptoms as
Bernas'
well as the timing of the onset of her pain. Ex. I; Cambareri affirm. at ¶ 12. Dr.
records also indicate that the right hip began hurting on June 7, 2021, about a year after
the incident. Cambareri affirm. at ¶ 13.
Dr. Cambareri noted in his IME report and supporting affirmation that the plaintiff
did not sustain a serious injury in the subject incident and the defendant has met his
burden of establishing that the plaintiff has no serious injury as a result of the subject
incident of June 15, 2020. Dr. Cambareri attributes the plaintiff's symptoms to her chronic
hip dysplasia (which Dr. Bernas also diagnosed), and her fall in February of 2021 that she
did not disclose to Dr. Bernas. Ex. I; Dr. Cambareri affirm. at ¶ 8-12.
Also, plaintiff herself testified at her deposition that no doctor has ever told her
that her left hip complaint is related to the subject incident. Ex. D at 114-15. Plaintiff
testified that Dr. Bernas told her it could be, but no doctor has told her it is definitely
related. fck
Because the plaintiff cannot demonstrate any evidentiary insufficiency in the
defendanes moving papers, it must be found that the defendant met his burden to
demonstrate a prima facie entitlement to summary judgment, shifting the burden to
plaintiff to raise a question of fact. As discussed below, it is respectfully submitted that
the plaintiff did not meet that burden.
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POINT II
THE PLAINTIFF FAILED TO RAISE A TRIABLE
ISSUE OF FACT AS SHE DlD NOT ADDRESS HER
BERNAS'
GAP IN TREATMENT AND DR.
OPPOSING AFF1RMATION IS NOT BASED ON
ADMISSIBLE OBJECTIVE MEDICAL EVIDENCE.
Once a defendant on motion establishes that the plaintiff did not sustain a serious
injury, the burden shifts to the plaintiff to provide objective medical evidence in
admissible form that demonstrates a question of fact. See Dann v. Yeh, 55 A.D.3d 1439
(4th (4th
Dept., 2008) (emphasis added); Howard v. Roqalski, 291 A.D.2d 909 Dept.,
2002).
Medical evidence presented by the plaintiff in opposition must be more than
subjective complaints of pain. Subjective complaints are insufficient. Accordingly, the
Court of Appeals has held that the plaintiff must put forth objective evidence to establish
a serious injury. S_ee Toure v. Avis Rent a Car Sys., 98 N.Y.2 345 (2002).
Bernas'
A. Dr. Affirmation is Not Based on Objective Medical Evidence and
Therefore Cannot Raise a Question of Fact.
It is long-standing New York law that a plaintiff must provide objective medical
evidence in admissible form to raise a question of fact in opposition to a summary
judgment motion. To that end, subjective complaints are insufficient. Scheer v. Koubeck,
70 N.Y.2d 678, 679 (1987); Toure v. Avis Rent a Car Sys., 98 N.Y.2 345 (2002); Dann v.
Yell, 55 A.D.3d 1439 (4th Dept. 2008).
Further, a plaintiff's expert who provides an opinion based only upon plaintiff's
subjective complaints is insufficient to overcome a defendant's entitlement to summary
judgment. Jaromin v. Northrup, 39 A.D.3d 1264, 1265 (4th Dept., 2007); Kinchler v. Cruz,
-4 -
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22 A.D.3d 808, 808 (2d Dept. 2005). Where a plaintiff relies on a doctor's affirmation that
relies solely on plaintiff's subjective complaints, the plaintiff cannot raise a question of
fact. Jaromin, at 1265; Kinchler, at 808.
Here, Dr. Bernas causally relates the plaintiff's hip symptoms .to the subject
collision based solely on her subjective statements. He did not review or attach the
plaintiff's sworn deposition testimony, instead relying on what she told him in her office
on March 16, 2021. Bernas affirm. at ¶ 5.
Bernas'
Dr. affirmation of a causal relationship is even further undermined and
contradicted by his own records. In the affirmation, Dr. Bernas states that his opinion as
to the causal relationship is based on his review of a portion of his medical records, the
imaging, and plaintiff's surgery records at ECMC that Dr. Bernas performed, which he
attached as Exhibit 2 to his affirmation. Dr. Bernas did consider the lengthy medical
records from plaintiff's other providers (Dr. Cambareri affirm. Ex. B. at 5-13), and in fact
intentionally omitted a contradictory treatment note from his own records to reach this
conclusion.
On November 30, 2021, Dr. Bernas learned that the plaintiff failed to previously
disclose a February 2021 fall that caused her left hip pain. Ex. 1. at p.2. Dr. Bernas states
in the note that "there is a history noted of the patients left hip pain that started in late
February, after a fall at home. This was documented during an IME examination by a Dr.
Ungerer, a report that had not been included in our medical record...this fall was not
office."
disclosed in her medical history to our Further, "the fall in February, previously
pain."
not noted, adds to the confusion of the timing of the onset of her left hip Ex. I at p.
2.
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He also identifies that the plaintiff suffers from "Femoroacetablular impingement
is a chronic/developmental condition, therefore this diagnosis was not caused
specifically
accident."
by the motor vehicle Ex. I at p. 2.
Regarding the right hip, Dr. Bernas states "We cannot definitively correlate her
accident."
right hip to the motor vehicle Ex. I at p. 2.
These statements made by Dr. Bernas in his treatment note directly contradict
his finding of a causal relation stated in his affirmation. It is abundantly clear why he did
not include this treatment note in Ex. 2 to his affirmation and did not therefore rely on it in
reaching his conclusion. Had he read and included it, he would not have been able to
sign the affirmation or reach the same conclusion.
Bernas'
This medical record directly contradicts Dr. affirmation, which clearly
omits the treatment date without reason or explanation and therefore cannot raise a
Bernas'
question of fact. Further, Dr. affirmation cannot raise a question of fact because
it is not based on objective medical evidence relative to the causal relation of plaintifFs
hip pain. Dr. Bernas simply relies on the fact that plaintiff told him it started as a result of
the subject incident. Se_e Bernas affirm. at ¶5. This does not constitute objective medical
evidence as it is not a sworn statement. In fact, the plaintiff's Noveniber 30, 2021
revelation of a February 2021 fall is the exact reason why subjective complaints and
statements cannot be relied upon in Court. Plaintiff told Dr. Bernas in March 2021 that
her left hip pain was caused by the subject incident, but then on November 30, 2021 he
discovered a February fall that she had not previously mentioned. This caused Dr. Bernas
pain."
to question "the timing of the onset of her left hip Cambareri affirm. Ex. B at 9; Ex.
I.
. .
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Bernas'
Therefore, because Dr. affirmation bears no evidentiary value and relies
solely on piecemeal subjective statements made by the plaintiff, the plaintiff has failed to
raise a question of fact and summary judgment should be granted.
B. Plaintiff Has Not Explained or Addressed the Gap in her Treatment and
Subsequent Falls.
The Court of Appeals in Pommells v. Perez, 4 N.Y.3d 566 (2005) held that "even
where there is objective medical proof, when additional contributory factors interrupt the
chain of causation between the accident and claimed injury-such as a gap in treatment,
an intervening medical problem, or a pre-existing condition-summary dismissal of the
appropriate."
complaint may be Pommells, at 572. A plaintiff who terminates therapeutic
injury,"
measures following the accident, while claiming "serious must offer some
reasonable explanation for having done so. 14. at 574.
(4th
In Semonian v. Seidenberg, 71 A.D.3d 1562, 1563 Dept., 2010), the Fourth
Department found that that plaintiff's thirteen-month gap in treatment, during which the
plaintiff worked full time as a security guard, supported a finding granting summary
judgment for the defendants on the issue of serious. In Ning Wang v. Harqet Cab Corp.,
(2nd
47 A.D.3d 777, 777-78 Dept., 2008), the Second Department determined that a ten-
month gap in treatment that could not be explained supported a finding of serious injury
for the defendants.
Providing no explanation for a gap in treatment, or failing to treat, is fatai to the
claim. McCarthy v. Bellamy, 39 A.D.3d 1166 (4th Dept., 2007). Additionally, a plaintiff's
physician cannot raise a question of fact where he fails to address a gap in the plaintiff's
treatment or a finding by the defense expert as to some other injury or predipitating event
causing the plaintiff's symptoms. Jaromin v. Northrup, 39 A.D.3d 1264, 1265 (4th Dept.,
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2007). The Fourth Department in Jaromin, supra, affirmed the Order from the Supreme
Court, Chautauqua County, Hon. Paula Feroleto, J.S.C., granting the defendanes motion
for summary judgment on threshold where the plaintiff's physician failed to address the
plaintiff's gap in treatment. ldL The plaintiff's physician also failed to address the
defendants experts attributing the plaintiffs injury causation to a chronic condition. l.çL
The plaintiff argued without success that the conflicting expert opinions required a trial by
a fact finder, but the Court denied this argument. Specifically, the Fourth Department
pointed to the plaintiff's experfs failure to address the gap and defendanis expert in
addition to the plaintiff's expert basing his opinion only on the plaintiff's subjective
complaints. isL
Here, plaintiff provides no explanation, and Dr. Bernas does not even comment
on the nine-month gap in treatment with a doctor, which is not just a gap in treatment, but
it is a complete refusal to treat for any hip injury. Dr. Bernas similarly does not address
or mention any of Dr. Cambareri's findings including that there is no objective evidence
Bemas'
in the imaging of any trauma to either hip related to this incident. Dr. affirmation
simply states that he treated the plaintiff and he now believes that her ldft hip injury is
causally related due to the plaintiff's in-office recitation of her medical histo y. Dr. Bemas
reaches his conclusions without addressing any point raised by the defendant or Dr.
Cambareri regarding causation.
After the date of the incident, plaintiff did not treat with an orthopedist for claimed
left hip injury until March 16, 2021 with is Dr. Bemas nine months after the incident. At
that treatment date, plaintiff told Dr. Bernas that she did not do any physical therapy for
the hip (Bernas affirm. Ex. 2 at 9), and she failed
Preview
FILED: CHAUTAUQUA COUNTY CLERK 03/01/2023 11:27 AM INDEX NO. EK12021000391 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/01/2023 STATE OF NEW YORK SUPREME COURT : COUNTY OF CHAUTAUQUA RACHEAL L. CHANDLER REPLY MEMORANDUM OF LAW Plaintiff -vs- Index No.: EK12021000391 Honorable: Grace M. Hanlon, J.S.C. JESUS TORRES, JR. Defendant This reply memorandum of law is offered in further support of the defendant JESUS TORRES, JR.'s motion for summary judgment pursuant to CPLR §3212 dismissing the plaintiff's complaint and in opposition to the plaintiff's arguments raised in opposition papers. A brief recitation of the facts is set forth in the supporting affirmation of Richard J. Zielinski, Esq. ARGUMENT POINT I THE DEFENDANT HAS ESTABLISHED PRIMÄ FACIE ENTITLEMENT TO SUMMARY JUDGMENT. New York Insurance Law §5104(a) requires a plaintiff claiming injuries from a motor vehicle accident to have sustained injuries that meet the statutory threshold requirements, and failure to do so will result in dismissal. Se_e Pommells v. Perez, 4 N.Y.3d 566 (2005); Licari v. Elliot, 57 N.Y.2d 230 (1982). Whether a plaintiff has sustained a serious injury is a matter of law to be determined by the Court. Id. A plaintiff may establish a prima facie showing that the plaintiff has not sustained any serious injuries through the submission of sworn affidavits or affirmations of medical experts who have reviewed the plaintiff's medical records and films and concluded no 1 of 12 FILED: CHAUTAUQUA COUNTY CLERK 03/01/2023 11:27 AM INDEX NO. EK12021000391 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/01/2023 objective evidence exists to support the plaintiff's claims of injury. See Grossman v. (2nd Wright, 268 A.D.2d 79 Dept, 2000h Plaintiff does not contest in its opposition papers that she did not sustain a serious injury under any threshold category aside from significant limitation of use. Therefore, each other serious injury category must be dismissed and the adalysis at issue on this motion will focus squarely on whether the plaintiff sustained a significant limitation as defined by NY Ins. Law § 5120(d), Furthermore, plaintiff's opposition does not raise any argument as to the sufficiency of the defendanes proof to support a claim that the defendant did not meet his Bernas' burden. Plaintiff solely relies on her own proof, Dr. affirmation, to argue she did in fact sustain a serious injury. Because plaintiff has not even argued a limitation in the defendant's proof, it must be found that the defendant has met his burden. In Jones v. Leffel, 125 A.D.3d 1451 (4th Dept. 2015), the Fourth Department held the defendant was able to establish its prima facie burden under the significant limitation of use category where it submitted the affirmed report of a neurologist who examined the plaintiff, reviewed the plaintiff's medical records, and opined "that the plaintiff sustained a cervicothoracic strain in the accident i.e. 'a soft tissue injury from which an individual could weeks" be expected to make a full recovery...in a matter of and that there was no objective evidence that the plaintiff sustained a cervical disc herniation, other acute injury or permanency. Similarly, here, the defendant submitted the sworn affirmation of Dr. Cambareri, an orthopedist, who reviewed the plaintiff's medical records, examined the plaintiff, and opined that she did not sustain an injury to either hip in the subject incident, and did not sustain a serious injury. Dr. Cambareri considered the plaintiff's treatment course, timing - 2 - 2 of 12 FILED: CHAUTAUQUA COUNTY CLERK 03/01/2023 11:27 AM INDEX NO. EK12021000391 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/01/2023 of treatment, physical activity after the accident, and records. Dr. Cambareri also imaging Bernas' reviewed the entirety of Dr. medical records, discussing the November 30, 2021 report with specificity. Cambareri affirm. Ex. B at 15-16. In that record, Dr. Bernas questions the causal relationship between the incident and the plaintiff's symptoms as Bernas' well as the timing of the onset of her pain. Ex. I; Cambareri affirm. at ¶ 12. Dr. records also indicate that the right hip began hurting on June 7, 2021, about a year after the incident. Cambareri affirm. at ¶ 13. Dr. Cambareri noted in his IME report and supporting affirmation that the plaintiff did not sustain a serious injury in the subject incident and the defendant has met his burden of establishing that the plaintiff has no serious injury as a result of the subject incident of June 15, 2020. Dr. Cambareri attributes the plaintiff's symptoms to her chronic hip dysplasia (which Dr. Bernas also diagnosed), and her fall in February of 2021 that she did not disclose to Dr. Bernas. Ex. I; Dr. Cambareri affirm. at ¶ 8-12. Also, plaintiff herself testified at her deposition that no doctor has ever told her that her left hip complaint is related to the subject incident. Ex. D at 114-15. Plaintiff testified that Dr. Bernas told her it could be, but no doctor has told her it is definitely related. fck Because the plaintiff cannot demonstrate any evidentiary insufficiency in the defendanes moving papers, it must be found that the defendant met his burden to demonstrate a prima facie entitlement to summary judgment, shifting the burden to plaintiff to raise a question of fact. As discussed below, it is respectfully submitted that the plaintiff did not meet that burden. - 3 - 3 of 12 FILED: CHAUTAUQUA COUNTY CLERK 03/01/2023 11:27 AM INDEX NO. EK12021000391 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/01/2023 POINT II THE PLAINTIFF FAILED TO RAISE A TRIABLE ISSUE OF FACT AS SHE DlD NOT ADDRESS HER BERNAS' GAP IN TREATMENT AND DR. OPPOSING AFF1RMATION IS NOT BASED ON ADMISSIBLE OBJECTIVE MEDICAL EVIDENCE. Once a defendant on motion establishes that the plaintiff did not sustain a serious injury, the burden shifts to the plaintiff to provide objective medical evidence in admissible form that demonstrates a question of fact. See Dann v. Yeh, 55 A.D.3d 1439 (4th (4th Dept., 2008) (emphasis added); Howard v. Roqalski, 291 A.D.2d 909 Dept., 2002). Medical evidence presented by the plaintiff in opposition must be more than subjective complaints of pain. Subjective complaints are insufficient. Accordingly, the Court of Appeals has held that the plaintiff must put forth objective evidence to establish a serious injury. S_ee Toure v. Avis Rent a Car Sys., 98 N.Y.2 345 (2002). Bernas' A. Dr. Affirmation is Not Based on Objective Medical Evidence and Therefore Cannot Raise a Question of Fact. It is long-standing New York law that a plaintiff must provide objective medical evidence in admissible form to raise a question of fact in opposition to a summary judgment motion. To that end, subjective complaints are insufficient. Scheer v. Koubeck, 70 N.Y.2d 678, 679 (1987); Toure v. Avis Rent a Car Sys., 98 N.Y.2 345 (2002); Dann v. Yell, 55 A.D.3d 1439 (4th Dept. 2008). Further, a plaintiff's expert who provides an opinion based only upon plaintiff's subjective complaints is insufficient to overcome a defendant's entitlement to summary judgment. Jaromin v. Northrup, 39 A.D.3d 1264, 1265 (4th Dept., 2007); Kinchler v. Cruz, -4 - 4 of 12 FILED: CHAUTAUQUA COUNTY CLERK 03/01/2023 11:27 AM INDEX NO. EK12021000391 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/01/2023 22 A.D.3d 808, 808 (2d Dept. 2005). Where a plaintiff relies on a doctor's affirmation that relies solely on plaintiff's subjective complaints, the plaintiff cannot raise a question of fact. Jaromin, at 1265; Kinchler, at 808. Here, Dr. Bernas causally relates the plaintiff's hip symptoms .to the subject collision based solely on her subjective statements. He did not review or attach the plaintiff's sworn deposition testimony, instead relying on what she told him in her office on March 16, 2021. Bernas affirm. at ¶ 5. Bernas' Dr. affirmation of a causal relationship is even further undermined and contradicted by his own records. In the affirmation, Dr. Bernas states that his opinion as to the causal relationship is based on his review of a portion of his medical records, the imaging, and plaintiff's surgery records at ECMC that Dr. Bernas performed, which he attached as Exhibit 2 to his affirmation. Dr. Bernas did consider the lengthy medical records from plaintiff's other providers (Dr. Cambareri affirm. Ex. B. at 5-13), and in fact intentionally omitted a contradictory treatment note from his own records to reach this conclusion. On November 30, 2021, Dr. Bernas learned that the plaintiff failed to previously disclose a February 2021 fall that caused her left hip pain. Ex. 1. at p.2. Dr. Bernas states in the note that "there is a history noted of the patients left hip pain that started in late February, after a fall at home. This was documented during an IME examination by a Dr. Ungerer, a report that had not been included in our medical record...this fall was not office." disclosed in her medical history to our Further, "the fall in February, previously pain." not noted, adds to the confusion of the timing of the onset of her left hip Ex. I at p. 2. - 5 - 5 of 12 FILED: CHAUTAUQUA COUNTY CLERK 03/01/2023 11:27 AM INDEX NO. EK12021000391 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/01/2023 He also identifies that the plaintiff suffers from "Femoroacetablular impingement is a chronic/developmental condition, therefore this diagnosis was not caused specifically accident." by the motor vehicle Ex. I at p. 2. Regarding the right hip, Dr. Bernas states "We cannot definitively correlate her accident." right hip to the motor vehicle Ex. I at p. 2. These statements made by Dr. Bernas in his treatment note directly contradict his finding of a causal relation stated in his affirmation. It is abundantly clear why he did not include this treatment note in Ex. 2 to his affirmation and did not therefore rely on it in reaching his conclusion. Had he read and included it, he would not have been able to sign the affirmation or reach the same conclusion. Bernas' This medical record directly contradicts Dr. affirmation, which clearly omits the treatment date without reason or explanation and therefore cannot raise a Bernas' question of fact. Further, Dr. affirmation cannot raise a question of fact because it is not based on objective medical evidence relative to the causal relation of plaintifFs hip pain. Dr. Bernas simply relies on the fact that plaintiff told him it started as a result of the subject incident. Se_e Bernas affirm. at ¶5. This does not constitute objective medical evidence as it is not a sworn statement. In fact, the plaintiff's Noveniber 30, 2021 revelation of a February 2021 fall is the exact reason why subjective complaints and statements cannot be relied upon in Court. Plaintiff told Dr. Bernas in March 2021 that her left hip pain was caused by the subject incident, but then on November 30, 2021 he discovered a February fall that she had not previously mentioned. This caused Dr. Bernas pain." to question "the timing of the onset of her left hip Cambareri affirm. Ex. B at 9; Ex. I. . . - 6 - 6 of 12 FILED: CHAUTAUQUA COUNTY CLERK 03/01/2023 11:27 AM INDEX NO. EK12021000391 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/01/2023 Bernas' Therefore, because Dr. affirmation bears no evidentiary value and relies solely on piecemeal subjective statements made by the plaintiff, the plaintiff has failed to raise a question of fact and summary judgment should be granted. B. Plaintiff Has Not Explained or Addressed the Gap in her Treatment and Subsequent Falls. The Court of Appeals in Pommells v. Perez, 4 N.Y.3d 566 (2005) held that "even where there is objective medical proof, when additional contributory factors interrupt the chain of causation between the accident and claimed injury-such as a gap in treatment, an intervening medical problem, or a pre-existing condition-summary dismissal of the appropriate." complaint may be Pommells, at 572. A plaintiff who terminates therapeutic injury," measures following the accident, while claiming "serious must offer some reasonable explanation for having done so. 14. at 574. (4th In Semonian v. Seidenberg, 71 A.D.3d 1562, 1563 Dept., 2010), the Fourth Department found that that plaintiff's thirteen-month gap in treatment, during which the plaintiff worked full time as a security guard, supported a finding granting summary judgment for the defendants on the issue of serious. In Ning Wang v. Harqet Cab Corp., (2nd 47 A.D.3d 777, 777-78 Dept., 2008), the Second Department determined that a ten- month gap in treatment that could not be explained supported a finding of serious injury for the defendants. Providing no explanation for a gap in treatment, or failing to treat, is fatai to the claim. McCarthy v. Bellamy, 39 A.D.3d 1166 (4th Dept., 2007). Additionally, a plaintiff's physician cannot raise a question of fact where he fails to address a gap in the plaintiff's treatment or a finding by the defense expert as to some other injury or predipitating event causing the plaintiff's symptoms. Jaromin v. Northrup, 39 A.D.3d 1264, 1265 (4th Dept., - 7 - 7 of 12 FILED: CHAUTAUQUA COUNTY CLERK 03/01/2023 11:27 AM INDEX NO. EK12021000391 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/01/2023 2007). The Fourth Department in Jaromin, supra, affirmed the Order from the Supreme Court, Chautauqua County, Hon. Paula Feroleto, J.S.C., granting the defendanes motion for summary judgment on threshold where the plaintiff's physician failed to address the plaintiff's gap in treatment. ldL The plaintiff's physician also failed to address the defendants experts attributing the plaintiffs injury causation to a chronic condition. l.çL The plaintiff argued without success that the conflicting expert opinions required a trial by a fact finder, but the Court denied this argument. Specifically, the Fourth Department pointed to the plaintiff's experfs failure to address the gap and defendanis expert in addition to the plaintiff's expert basing his opinion only on the plaintiff's subjective complaints. isL Here, plaintiff provides no explanation, and Dr. Bernas does not even comment on the nine-month gap in treatment with a doctor, which is not just a gap in treatment, but it is a complete refusal to treat for any hip injury. Dr. Bernas similarly does not address or mention any of Dr. Cambareri's findings including that there is no objective evidence Bemas' in the imaging of any trauma to either hip related to this incident. Dr. affirmation simply states that he treated the plaintiff and he now believes that her ldft hip injury is causally related due to the plaintiff's in-office recitation of her medical histo y. Dr. Bemas reaches his conclusions without addressing any point raised by the defendant or Dr. Cambareri regarding causation. After the date of the incident, plaintiff did not treat with an orthopedist for claimed left hip injury until March 16, 2021 with is Dr. Bemas nine months after the incident. At that treatment date, plaintiff told Dr. Bernas that she did not do any physical therapy for the hip (Bernas affirm. Ex. 2 at 9), and she failed