Tara Keating Brooks, et al., Appellants,v.Robert S. April, M.D., et al., Respondents.BriefN.Y.June 5, 2018New York County Clerk’s Index No. 805144/13 New York Supreme Court APPELLATE DIVISION — FIRST DEPARTMENT TARA KEATING BROOKS and CHRISTOPHER BROOKS, Plaintiffs-Respondents, against ROBERT S. APRIL, M.D. and ROBERT S. APRIL, M.D., P.C., Defendants-Appellants. >> >> To Be Argued By: Gerard K. Ryan, Jr. BRIEF FOR PLAINTIFFS-RESPONDENTS KELNER & KELNER Attorneys for Plaintiffs-Respondents 140 Broadway, 37th Floor New York, New York 10005 212-425-0700 gryan@kelnerlaw.com Of Counsel: Gerard K. Ryan, Jr. Printed on Recycled Paper -i- TABLE OF CONTENTS Page(s) PRELIMINARY STATEMENT........................................................ 1 QUESTIONS PRESENTED ............................................................. 4 STATEMENT OF FACTS................................................................. 4 Respondents’ Expert Opinion ................................................. 10 Appellants Expert’s Opinion ................................................... 14 Appellants’ Recitation of “Brooks’ Opposition” ................... 18 ARGUMENT ..................................................................................... 22 General Legal Analysis ........................................................... 22 POINT I THE RESPONDENTS PROPERLY PLACED PROXIMATE CAUSE BEFORE THIS COURT AND THE COURT BELOW .............................................................. 25 Proximate Cause and the Bleed ................................................. 33 POINT II RESPONDENT CLEARLY CREATED A QUESTION OF FACT, AT LEAST, WITH REGARD TO THE DIAGNOSIS OF THE AVM ON CT ANGIOGRAM AND CONVENTIONAL ANGIOGRAM AS THE FORMER IS NOT DENIED BY APPELLANTS AND THE LATTER IS CONCEDED ............................................... 34 -ii- CONCLUSION THE COURT BELOW DID NOT ERR IN DENYING THE APPELLANTS’ MOTION FOR SUMMARY JUDGMENT AND THIS COURT SHOULD AFFIRM THE DECISION .................................. 39 -iii- TABLE OF CONTENTS Page(s) Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986) .............................................................. 22, 38 Assaf v. Ropog Cab Corp., 153 A.D.2d 520 (1st Dept. 1989) ............................................. 22, 23, 38 Foster-Sturrup v. Long, 95 A.D.3d 726 (1 Dept. 2012) ................................................ 28, 29 Holmes v. Bronx Lebanon Hosp. Ctr., 128 A.D.3d 596 (1 Dept. 2015) .............................................. 32 Kallenberg v. Beth Israel Hospital, 45 A.D.2d 177 (1st Dept. 1974) ............................................... 25 Matter of Liquidation of Union Indem. Ins. Co. of N.Y., 89 N.Y.2d 94 (1996) ............................................................... 1 Ritt by Ritt v. Lenox Hill Hosp., 182 A.D.2d 560 (1 Dept. 1992) .............................................. 23, 38 Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 (1978) ............................................................. 24 Santiago v. Filstein, 35 AD3d 184 (1st Dept 2006) ................................................ 22 Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957) .............................................................. 19, 23, 24 Somoza v. St. Vincents Hospital and Medical Center of New York, 192 A.D.2d 429 (1st Dept. 1993) ........................................... 20, 24 -iv- Stone v. Goodson, 8 N.Y.2d 8 (1960) ................................................................... 24 Thomas v. Holzberg, 751 N.Y.2d 433 (1st Dept 2002) ............................................. 22 Windisch v. Weiman, 161 A.D.2d 433 (1st Dept. 1990) ............................................. 25 Winegrad v. New York Univ. Medical Center, 64 N.Y.2d 851 (1985) .............................................................. 22 Zuckerman v. City of New York, 49 N.Y.2d 557 (1980) .............................................................. 22, 23 1The Respondent is licensed as an attorney under the Name of Tara Keating Brooks. All references to Ms. Keating Brooks in this brief refer specifically to the same person referred to only as “Brooks” in Appellants’ brief. We will also respectfully refer to Robert April, M.D. as Dr. April or Appellant for the purposes of this brief. -1- Preliminary Statement This brief is submitted on behalf of Tara Keating Brooks1 and Christopher Brooks who respectfully ask this Court to affirm the Order of the Court below dated June 30, 2016 (NY County, Lobis, J.) which denied the defendants’ motion for summary judgment. It is rare that a direct refutation of the Appellants’ appeal can be had in the Preliminary Statement but this is that rare case. In the Preliminary Statement, the Appellants state, “It is conceded that an angiogram (which is an invasive and dangerous test) would have revealed the abnormality.” We note that this statement is a judicial admission that this specific test, if performed, would have diagnosed the Ms. Keating Brooks’ condition. For the purposes of this appeal and the trial of this action, this claim is now admitted despite the fact that it was not made by the party but by counsel in a brief. “...[I]t is irrelevant that the admissions were made in part by counsel on behalf of the Liquidator and that they were contained in affidavits or briefs.” Matter of Liquidation of Union Indem. Ins. Co. of N.Y., 89 N.Y.2d 94 (1996). -2- Having made this admission, the Appellants predicate this appeal on a claim regarding the adequacy of the expert affidavit submitted by Ms. Keating Brooks. The Appellants state, “But Brooks' expert does not opine that an angiogram was indicated! He merely states that ‘had an MRI/MRA or CTA or conventional angiogram been performed’ (R. 10 19) then the abnormality would have been diagnosed. But the record shows unmistakably that an MRI/MRA would not have diagnosed the abnormality (because these tests were in fact performed and did not diagnose it). Only an angiogram would have been diagnostic [a second judicial admission of this fact] and Brooks' own expert does not opine that this test was required.” Thereafter, the Appellant states, “Given this reality, the trial court erred in denying the defendants' motion for summary judgment.” Unfortunately for these Appellants, the fundamental foundation of their Appeal is not, in fact, based upon a “reality.” The record reveals that Ms. Keating Brooks’ expert does opine that an angiogram was indicated! (R 1011). The fundamental foundation of their Appeal is predicated upon a focus on one sentence in the affidavit of Ms. Keating Brooks’ expert as contained in the Record on Appeal to the singular exclusion of another. Ms. Keating Brooks’ expert stated on page 1011 of the Record, “Dr. April deviated from the accepted standard of medical care in not ordering indicated tests 2 Computed Tomography Angiography -3- which would have been dictated by proper performance of differential diagnosis, specifically including cerebral MRI and MRA or CTA2 or conventional cerebral angiography.” [emphasis added]. As such, the very test which the Appellants admit would have diagnosed the very condition which caused Ms. Keating Brooks’ injury was stated to be indicated by the standard of care. The Respondents’ expert specifically stated that the failure to perform this “indicated” test was a deviation. Regardless of the argument advanced by these Appellants, this is the “reality” in the record and upon this “reality” the relief requested by the Appellants must be denied and the order dated June 30, 2016 affirmed. -4- Question Presented Question: Should this Court reverse the Court below and grant the Appellants' motion seeking summary judgment as against the plaintiff? Answer: The certified question should be answered in the negative. Statement of Facts Tara Keating Brooks, a 35 year old attorney, fell on October 23, 2010 while tossing a football with her 14 year old nephew. (R 595, 600, 605). She landed on a concrete surface and struck the front of her face and forehead sustaining a brief loss of consciousness (under one minute) (R597, 154) and memory loss. (R600-601). She did not fracture or lose teeth but sought dental evaluation by Dr. Krakow for dental discomfort. She sustained facial bruising, facial cuts, scratches and a bump on her forehead. (R154, 158). After the fall, she experienced headaches over the right occipital and frontal regions and some numbness of her lower lip. (R598, 603). During the week following the accident, Ms. Keating Brooks experienced headaches, mental fogginess, fatigue, sleepiness and difficulty walking. (R 157, 180, 182). She complained her thought processes were "off." (R 155, 180, 182). She was concerned about impairment of higher executive functions (analytic processing, speed of thinking, planning, decision making, etc.) and its impact on her employment. (157, 158, 183). -5- Due to the continuing nature of her physical and mental complaints, Ms. Keating Brooks sought the services of a Dr. Zaremski who saw Ms. Keating Brooks on November 2, 2010. (R 150). He examined her, performed an electrocardiogram and suggested immediate neurological evaluation by Dr. April. Given her concern, Ms. Keating Brooks saw Dr. April the same day. (R 150). Ms. Keating Brooks informed Dr. April that some 20 years before, she had been treated for migraines at the age of 15. (R 160, 707). She informed Dr. April that the headaches she experienced after her October 23, 2010 fall were completely different and not "migraine" in nature. (R 200). Dr. April examined her and in the course of examination "shook her head" (R 175) which resulted in her "seeing stars." (R 623, 624). Dr. April testified shaking of the patient's head tests for bleeding in the brain. (R 623). After his examination, Dr. April referred Ms. Keating Brooks for a CT scan (R 628) which was performed that day (November 2, 2010) at Park Avenue Radiology and interpreted as "unremarkable". (R 649). Dr. April's impression was Ms. Keating Brooks was suffering post-concussion headache. (R 655). It is significant to note at this juncture that Dr. April never considered that the "fall" (which to the untrained patient precipitated her medical complaints) may have, in fact, been caused by a medical condition and not simply a trip and fall. (R 1004). In any event, Dr. April -6- scheduled Ms. Keating Brooks for a return visit November 8, 2010. Dr. April told her the radiologist interpreted the CT scan as normal.(R 648) with no accumulation of blood. (R 178). During the ensuing week Ms. Keating Brooks’ headaches, thought processing and confusion worsened. Additionally, her balance was compromised and she experienced visual disturbances and sensitivity to light. (R 182). Ms. Keating Brooks reported to Dr. April on November 8, 2010, she had fallen on two occasions since her November 2, 2010 initial visit, representing a total of three falls in a relatively short time. (R 182). Ms. Keating Brooks continued to take non-steroidal anti-inflammatory medication. She testified she told Dr. April "there is something wrong with me." (R 182). The examination on November 8, 2010 was similar to that performed on November 2, 2010 "including head shaking" (R 662) and Dr. April requested that Ms. Keating Brooks return the following Monday, November 15, 2010. (R 669). His plan of treatment was that she should rest as much as she could (R 200) and he informed Ms. Keating Brooks that her symptoms would improve and she should not worry. (R 183). Despite her lack of improvement in symptoms, Dr. April’s working diagnosis remained “benign headaches.” (R 668). Ms. Keating Brooks returned to Dr. April as instructed on November 15, 2010. -7- (R 184). Her symptoms had persisted. She experienced ongoing headaches, sensitivity to light, nausea, and difficulty with mental focus, concentration and processing. (R 185). Dr. April told Ms. Keating Brooks she had suffered a bad fall, her CT was negative and there was nothing wrong and it would take time for her to feel better. (R 185, 186). Dr. April suggested she see him again in two weeks. (R 189). Dr. April's impression remained unchanged with the likely diagnosis now described as post-concussion syndrome modulated by migraine background. (R 188). He testified his thinking was "this was persisting longer than she likes and longer than I like. The insult (fall) and her history of headache might be producing this particular picture." (R 682, 683). Dr. April testified Ms. Keating Brooks' headaches never took on classic migraine characteristics (R 683) and his diagnosis was post-concussion syndrome modified by migraine tendency (R 684) and since he believed the CT scan had ruled out other considerations, he “hoped that I was right” and “...this was going to go away in some mysterious fashion.” (R 684). Ms. Keating Brooks' next contact with Dr. April was a phone call on November 30, 2010 to inform him her symptoms were worsening and she was experiencing perceptual difficulty, confusion and visual disturbance. She had a severe blinding headache. (R 688,689,690, 195, 196). Ms. Keating Brooks told Dr. April she had -8- lost areas of vision, experienced increased pain and sensitivity to light and noise and had a disturbance in her visual field. (195, 196). Dr. April instructed her to take Aleve and see him the following day. (R 692). Dr. April thought it was probably an "ocular migraine". (R 205, 406, 407, 951). According to history and testimony, Ms. Keating Brooks never before experienced visual disturbance associated with a headache or visual aura preceding a headache. (R 199). On the next and last visit, December 1, 2010, Ms. Keating Brooks' symptoms persisted. (R 203). Dr. April performed a similar exam as on prior visits and did an EEG in his office. (R 204). The EEG was interpreted by Dr. April as normal. (R 205). His impression was "ocular migraine." (R 205). He administered two packets (50 mg) of Cambia in his office and gave her samples of Cambia for future doses. (R 206, 406, 213, 699). Cambia is a non-steroidal anti-inflammatory preparation used for migraine. (R 699). He also gave her a prescription for another preparation, Sumatriptan. (R 706). Dr. April did not refer Ms. Keating Brooks for further studies and instructed her to wait, rest and call him if her headache persisted or worsened. (R 206). The next day, December 2, 2010, Ms. Keating Brooks sought a second opinion regarding her condition from Dr. Paul Henri Cesar at Columbia Presbyterian Medical Center. (R 214, 216). Dr. Cesar performed an examination and ordered an MRI. (R -9- 222). The MRI performed on December 7, 2010 revealed a large region of blood breakdown products in her left parietal lobe. (R 843, 844). Ms. Keating Brooks was referred to a neurosurgeon for evaluation. (R 227). Ms. Keating Brooks saw Dr. Guy McKhann on December 9, 2010. (R 228). A contrast CT scan was ordered (R 228) and Dr. McKhann's findings were consistent with hemorrhage in the left superior parietal lobe and a vascular abnormality was noted. (R 229). Ms. Keating Brooks was then scheduled for a contrast MRI/MRA to delineate the anatomic location of the vascular abnormality for the purpose of planning further treatment. (R 432). Ms. Keating Brooks underwent contrast MRI on December 10, 2010 which showed the area of bleeding unchanged from the December 7, 2010 study. (R 797). Additional studies were performed and Ms. Keating Brooks was advised to undergo further studies over several weeks allowing time for the resolution of hemorrhage as there was too much blood for definitive evaluation. (R 433). In May of 2011, Ms. Keating Brooks underwent consultation with Dr. Gopinathan at New York University Hospital. (R 247, 440). She continued to experience headaches, thinking and concentration difficulty. A cerebral angiogram was performed on June 13, 2011 at St. Lukes' Roosevelt Hospital. (R 935, 936). The findings were: "angiographic study demonstrates evidence of a micro AVM in the left parietal lobe. 3The Respondent recognizes that Dr. April and his expert assert that the entry regarding a positive Babinski sign was written in error. The issue as to whether his record is accurate or his testimony is accurate is not an issue to be decided as a matter of law and must be left to a jury. -10- There is supply from the parietal branch of the left middle cerebral artery. Drainage is through a left parietal cortical vein that drains to the superior sagittal sinus." (R 936). Ms. Keating Brooks underwent neurosurgery with resection of the AVM and residual damaged brain tissue on July 27, 2011 at Columbia Presbyterian Medical Center. (R 951) She experienced seizures several days post operatively and was placed on anti-seizure medication, a regimen which continues to the present with occasional break through seizure activity. (R 268, 885-891). Ms. Keating Brooks continues to suffer headaches, has a seizure disorder necessitating anti-seizure medication, along with visual disturbances and cognitive impairment. (R 284-286). Respondents’ Expert Opinion The Respondents’ expert set forth numerous deviations on the part of Dr. April. The expert affirmed that Dr. April deviated from the accepted standards of medical care by failing to properly obtain and assess Ms. Keating Brooks' history and clinical course (episodic falls, confusion, headaches, and visual disturbance) in a patient with a positive Babinski sign.3 (R 1009). The expert also stated that Dr. April failed to perform a differential diagnosis -11- of this semiology with consideration of intracranial processes and provided the Motion Court with an extensive list which is summarized in the Record at 1009 and 1010). What the expert described as an extensive but abbreviated list above defines the broad categories to be considered in a differential diagnosis, much of which can be eliminated or rendered medically unlikely by basic history, physical and neurologic examination, indicated work up and appropriate clinical focus. The Respondents’ expert also stated that Dr. April departed from accepted standards of medical practice in performing an non-indicated manipulative procedure, "head shaking" or "head impact testing" to determine intracranial bleeding, as Dr. April asserts in his deposition which is not appropriate in a patient who has recently fallen and sustained head trauma. (R1011). The expert stated head shaking or head impact testing to assess intracranial bleeding as Dr. April asserts is not an accepted diagnostic measure for this purpose. (R 1011). The expert further stated that Dr. April deviated from the accepted standard of medical care in not ordering indicated tests which would have been dictated by proper performance of differential diagnosis, specifically including cerebral MRI and MRA or CTA or conventional cerebral angiography. (R 1011). The expert also opined that Dr. April deviated from the standard of medical care by prescribing contraindicated medications, to wit: a non-steroidal 4 Posterior Reversible Encephalopathy Syndrome (R 1011). -12- anti-inflammatory drug which is contraindicated in suspected intracranial bleeding, and a Triptan, an agent with vasoconstricting properties, contraindicated in the presence of suspected vasculititis, intracranial hemorrhage or PRES.4 (R 1012). Finally the expert stated that since Dr. April did not perform an analysis of differential diagnosis and did not perform the indicated work up, Dr. April further deviated from the standard of medical care in not making a precise diagnosis: clinical manifestation of a cerebral AVM which led to a further deviation, namely, the failure to obtain indicated consultation (neurosurgical) and the failure to proffer timely indicated treatment (obliteration of AVM by embolization and/or surgery, proton beam irradiation or some combination thereof). (R 1012). The expert stated that during the course of his evaluation and treatment of Ms. Keating Brooks, Dr. April did not formulate a precise, correct or firm diagnosis. The expert noted that Dr. April considered post-concussion syndrome, recurrence of migraine and ocular migraine headache. The expert stated that there was inadequate evidence to dismiss Ms. Keating Brooks' October 23,2010 semiology and subsequent semiology as being of migrainous etiology. The expert highlighted the fact that despite this continuing and errant diagnosis, Ms. Keating Brooks had not experienced any migraine headaches for over twenty years and recurrent falls are atypical for -13- migraine as well as post concussion syndrome. (R 1013). Further, the expert opined that there was nothing in Ms. Keating Brooks' history to suggest ocular migraine and diagnosing ocular migraine on the basis of a telephone call on November 30, 2010 was a departure from good and accepted practice. (R 1015). The expert also stated, that Dr. April's unjustifiable reliance on a patient history that a 20 year old MRI performed when she was 15 was "normal" was insufficient evidence to rule out the existence of an AVM in adulthood. Significantly, vascular imaging was not performed in that study, and AVM characteristically enlarge over time. In fact this abnormality is most often diagnosed after 20 years of age. Thus, Ms. Keating Brooks' history of negative MRI at age 15 should not have been relied on with respect to the presence of an AVM or any other intracranial lesion as a potential cause of Ms. Keating Brooks' November 2010 complaints. (R 1016). The expert then established proximate cause. With regard to the failure to perform the indicated angiography, the Appellant has conceded this test would have diagnosed the condition causing Ms. Keating Brooks’ continuing and evolving injuries. Respondents’ expert affirmed that earlier diagnosis would have avoided the major intracerebral hemorrhage with brain tissue destruction which necessitated a more extensive surgical procedure and resultant permanent neurologic deficits, -14- including a seizure disorder. The expert stated that Dr. April's deviations from the standards of medical care substantially deprived Ms. Keating Brooks of the avoidance of this scenario and having no or lesser deficits. (R 1019, 1020, 1021). Appellants Expert’s Opinion At the outset, we submit that despite the finding that the Appellants had set forth a prima facie case of non-negligence, we submit that this is not the case. (R16). Dr. Kaufman claimed that the standards of good and accepted medical practice were met by Dr. April telling Ms. Keating Brooks on November 8, 2010 that if she were not doing better she should so advise him. (R 46). The record reveals that is exactly what she did on the second visit and the third visit without any significant change in treatment or investigation. If the record reveals that Ms. Keating Brooks did exactly what the Appellants’ expert stated Dr. April wanted her to do, in accordance with good and accepted medical practice, the burden was then on Appellants’ expert to acknowledge that fact and explain why the failure to alter the diagnosis, investigation or treatment still complied with good and accepted medical treatment. We simply submit that there must be a purpose underlying the direction that the Respondent keep the Appellant aware of her continuing complaints. If, as the record proves, she followed that direction, the Appellants’ expert must explain how the complete inaction on the part -15- of the Appellant, once so informed, continued to follow the standards of good and accepted medical practice. As stated by Respondents’ expert, “Ms. Keating Brooks' course to this point is consistent with but not diagnostic of "post-concussion syndrome." Such casual diagnostic labeling of "post-concussion" syndrome ignores the principal method of medical and neurologic analysis namely, differential diagnosis.” (R 1005). Dr. Kaufman also offered an opinion in a most conclusory form when he presumed that the history of falling and loss of consciousness while playing catch was mechanical in nature. (R 43). The mere fact that a patient not trained in the field of medicine does not consider a fall to be the result of a medical condition rather than the opposite neither excuses Dr. April nor his expert, Dr. Kaufman, for failing to consider a medical cause for the fall and loss of consciousness. Since Dr. Kaufman fails to address this possibility and its significance, his opinion fails to shift the burden to the plaintiff. As the Respondents’ expert advised the Court, “Note that, aside from not performing a differential diagnosis, recurrent falls are not typical for either of the diagnoses proffered by Dr. April and supported by Dr. Kaufman. As described her semiology could reasonably be explained by multiple other conditions...” which were found in paragraph 22 of the Respondents’ expert’s Affirmation. (R 1013, 1014). -16- Further, Dr. Kaufman, ignores the internal inconsistency in the records relying regarding the Babinski sign. (R 44). He, at least in his initial offering, ignores the written record and bases his opinion upon the contradictory testimony of Dr. April which attempts to refute his own medical record. While he attempted to improperly explain his omission on reply, the issue as to whether the entry is correct or the testimony is correct is solely within the province of the jury and, certainly, not subject to expert determination. Only a jury will be able to sort out whether he was telling the truth when he wrote in his records that the Babinski reflex was present or when he changed his records to state that it was not. We note that it was present in the records of Park Avenue Radiology but, of course, that record was not within his control to change. (R 787). Further, while the Respondent was arguing that MRI/MRA evaluation contemporaneous with Ms. Keating Brooks' November 2010 complaints was indicated, the Appellants’ expert specifically relied upon the "negative MRI" taken when Ms. Keating Brooks was 15 years old, (R 43) literally 20 years before, upon which, at least partially, to base his opinion that Dr. April did not deviate from good and accepted medical practice. (R 46). He failed completely to explain the specific relevance of a 20 year old MRI in light of the present medical history. The failure to explain this, once again, failed to shift the burden. -17- Further, the Appellants’ expert cites to Dr. McKhann's opinion that the rupture likely occurred when the acute symptoms were reported on November 30, 2010. The expert also cites Dr. McKhann's assessment that the bleed was not likely related to a head trauma at or about October 23, 2010 (the earlier fall). (R 49). Respondents submit that while an argument can be made that the rupture had occurred by the time that Ms. Keating Brooks called Dr. April on November 30, 2010 when he ignored her pleas for help that morning, the fact that the bleed was not caused by the earlier trauma would not change the standards of practice to be applied during the period of time prior to this event. (R 1020) Further, that Appellants’ expert relies on Dr. McKhann’s assessment that it was unlikely that the earlier trauma caused the AVM and resultant bleed requires the Appellants’ expert to negate the alternative probability that the earlier fall was caused by the pathophysiologic effects of the ongoing and undiagnosed AVM. Once again, this subject remains unexplained by the Appellants’ expert. These are examples of the failure of the Appellants’ expert to actually shift the burden to the Respondents. We submit that the Appellants cannot treat a motion for summary judgment as they would proof at trial. The burden of proof is legally reversed and, as such, conclusory opinions, the failure to explain inconsistencies, the failure to explain how advising a patient to provide the physician with updates on her -18- condition meets proper standards of medical care but the patient’s following of this advice creates no duty to alter treatment or prognosis and the reliance of a 20 year old MRI to form an expert opinion on matters in the present time without explanation as to the actually relevancy of this study, fails, utterly, to meet the burden imposed upon the Appellant on a motion for summary judgment. Appellants’ Recitation of “Brooks’ Opposition” The Appellants, once again, selectively discuss the argument advanced by the Respondents in the Court below. At first, we ask that this Court focus on the fact that Ms. Keating Brooks presented to Dr. April with a history of having fallen and suffering from a myriad of physical and mental disturbances including headaches, mental fogginess, fatigue, sleepiness and difficulty walking. He shook her head. The Appellants “spin” much of the argument presented to this Court. The Appellants state, “Brooks' expert identified a host of claimed departures, including such items as the performance of "head shaking" test, even though the expert himself observed that he could not identify any damage such a test could cause.” The Appellants added, “ [t]he degree of harm to a patient with intracranial bleeding caused by this maneuver cannot be known.” The reason why the Appellants choose to place a period in the middle of the quote cannot be known, much like the extent of -19- damage caused by the head shaking. We note however, that the expert actually said “The degree of harm to a patient with intracranial bleeding caused by this maneuver cannot be known ("evidence based") as no such study can be responsibly done.” (R1011). The plain words as used by the Respondents’ expert and curiously redacted by the Appellants indicate that the expert was not saying he could not identify any harm attributable to this absurd test [shaking the head of a patient with a possible brain bleed] but the degree of such injury could not be quantified because no responsible medical researcher would ever do such a study to assess the degree of injury caused. The burden to prove entitlement to summary judgment always rests with the Movant. Issue-finding, rather than issue-determination, is the key to the procedure. [Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957)]. The Appellants than argue, through their attorney, “Indeed, none of the alleged departures could conceivably have any causal relationship to Brooks' outcome - save the issue of radiology studies.” Attorney commentary does not opinion make. The Respondents’ expert discusses at length the failure to develop a precise diagnosis (R1012) or, at a minimum, a proper differential diagnosis. (R 1009, 1011, 1012, 1013, 1017, 1021). It is this failure which caused further deviations in failing to order proper testing (R1011, 1012) and the obtaining of proper consults. (R1012). All -20- deviations cited were considered a proximate cause of Ms. Keating Brooks injuries. (R1020, 1021). That Appellants’ attorney disagrees with Respondents’ expert is not relevant to the task before this Court. The Appellants thereafter make much about the Appellants’ expert repeated references to the departure regarding the failure to obtain an MRI/MRA or CTA but less frequently about the need for a conventional angiogram. The test before this Court is not whether the expert uses particular terminology but whether the substance of the affidavit is sufficient to raise a question of fact. (Somoza v. St. Vincents Hospital and Medical Center of New York, 192 A.D.2d 429 (1st Dept. 1993)). We spoke earlier about the failure on the part of the Appellants to accurately present the Respondents’ expert analysis regarding the indicated tests not ordered and will not reargue that position again. (See Brief at pages 2, 3) While throughout the course of the affirmation, the Respondents’ expert spoke more often of the non-invasive testing, quantity is not a dispositive factor. The complaint that the expert referred to this test less frequently, which is what the argument appears to be, is not relevant to the issues before this Court. The Respondents’ expert stated that a CTA and conventional angiography were indicated tests wrongfully not performed and constitute both deviations and a proximate cause. The rest of the argument made on appeal may, though likely not, make for cross- -21- examination before a jury at trial, it is not for this Court to weigh the evidence but to determine if issues exist. Finally, we are compelled to challenge the claims by the Appellants found on page 15 of the Brief. The editing in this case requires comment. The Appellants state at Page 15, “With respect to the December 1 visit, Brooks' expert concedes that by this time the bleed had occurred. (R. 1020, stating that it is ‘correct’ that ‘the rupture likely occurred when the acute symptoms were reported on November 30.’) Brooks' expert makes no claim that anything could have been done by then to change Brooks' course. (R. 1020).” We present the actual statement of the Respondents’ expert, “Further, Dr. Kaufman confuses two separate issues in attempting to excuse Dr. April's negligence. First he cites to Dr. McKhann's opinion that the rupture likely occurred when the acute symptoms were reported on November 30, 2010. Second, he cites Dr. McKhann's assessment that the bleed was not likely related to a head trauma at or about October 23, 2010 (the earlier fall). I note that both of these statements, while correct, are not intertwined.” (R 1020). It is abundantly clear to any reader of the statement by the Respondents’ expert that the word “correct” was used in commenting on Dr. Kaufman’s quoting of Dr. McKhann’s opinion and not, as edited, an agreement with the concept, itself. In fact, absent from the edited quote is the sentence, “While an argument can be made that the rupture had occurred by the time that Ms. Keating Brooks called Dr. April on November 30, 2010 when he ignored her pleas for help that morning, the fact that the bleed -22- was not caused by the earlier trauma does not change the standards of practice to be applied.” Further, while Dr. Kaufman relies on what he describes as the opinion of “Mrs. Brook’s treating physicians” [neither named nor referenced] that the acute bleed occurred on November 30, 2010, no where in his affirmation does he state that such is actually his opinion. ARGUMENT General Legal Analysis The proponent of a motion for summary judgment is required to make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact [Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986); Winegrad v. New York Univ. Medical Center, 64 N.Y.2d 851 (1985); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Santiago v. Filstein, 35 AD3d 184 (1st Dept 2006); Thomas v. Holzberg, 751 N.Y.2d 433 (1st Dept 2002). The failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. New York Univ. Medical Center, supra ). We submit that the evidence must be viewed in a light most favorable to plaintiff drawing all reasonable inferences in favor of the nonmoving party (Assaf v. -23- Ropog Cab Corp., 153 A.D.2d 520 (1st Dept. 1989) in the determination of the motion and this appeal. As this Court held in Ritt by Ritt v. Lenox Hill Hosp., 182 A.D.2d 560 (1 Dept. 1992): [O]nly when a defendant refutes "by specific factual reference the allegations of malpractice made by plaintiff" (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 326, 508 N.Y.S.2d 923, 501 N.E.2d 572) does the burden of going forward with the proof shift to the plaintiff "to produce evidentiary proof in admissible form establishing the existence of material questions of fact" (68 N.Y.2d at 326-327, 508 N.Y.S.2d 923, 501 N.E.2d 572, supra). As such, the plaintiff only need produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. (Zuckerman v. City of N.Y., 49 N.Y.2d 557 (1980)). The plaintiff need not prove his or her case. The plaintiff need only show that judgment cannot be rendered, as a matter of law, on the facts before the Court. Highlighting, of course, that the evidence must be viewed in a light most favorable to plaintiff and all issues of credibility must be resolved in plaintiff's favor. (Assaf, supra). We do not suggest that it is the role of this court to decide who is correct but the task before the court is issue finding not issue determination (Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395(1957)). We submit that the plaintiffs have provided this court with much evidence to deny the Appellants' appeal. This is even -24- more so apparent when the court considers that the evidence must be viewed in a light most favorable to plaintiff and all issues of credibility must be resolved in plaintiff's favor. The court's function on this motion for summary judgment is issue finding rather than issue determination. (Sillman v. Twentieth Century Fox Film Corp. Supra). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. (Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 (1978)). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied. (Stone v. Goodson, 8 N.Y.2d 8 (1960)). The courts have clearly held that should a medical malpractice plaintiff's expert's affidavit be sufficient to raise triable issues of fact as to negligence, summary judgment is precluded. (Somoza v. St. Vincents Hospital and Medical Center of New York, 192 A.D.2d 429 (1st Dept. 1993)). In that case, this Court held that the affidavit of plaintiff's expert witness was sufficient to create questions of fact as to whether, in light of the symptoms exhibited by plaintiff during her internal examination and other tests, plaintiff's release from the hospital was so clearly contraindicated by normal practice that ordinary prudence required further inquiry into the correctness of the discharge order. Plaintiff's expert in Somoza concluded -25- that the premature discharge from the hospital was a departure from good and accepted medical practice. In Windisch v. Weiman, 161 A.D.2d 433 (1st Dept. 1990) this Court held that the failure of a physician to properly follow-up on a patient, resulting in a lack of correct diagnosis, may provide a basis for imposing liability even if a patient is partially responsible for a delay in diagnosis. The court in Windisch again held that the relevant test for dismissal for failure to make a prima facie case is whether any rational view of the evidence would support the action and it is the jury's function to assess conflicting evidence and determine credibility of witnesses and the weight to be accorded expert testimony. See also Kallenberg v. Beth Israel Hospital, 45 A.D.2d 177 (1st Dept. 1974). POINT I THE RESPONDENTS PROPERLY PLACED PROXIMATE CAUSE BEFORE THIS COURT AND THE COURT BELOW The Respondents claim against the Appellants is that Dr. April failed to properly evaluate the history and continuing complaints as provided by Ms. Keating Brooks, failed to develop a proper differential diagnosis and failed to order proper testing required to rule out conditions within the differential diagnosis and diagnose the AVM proximately causing the permanent damage to the Ms. Keating Brooks. -26- The Appellants continue to admit that had a conventional angiogram been performed, the AVM would have been diagnosed is clear and repeated in POINT I of their brief. The Appellants appear to get caught up in whether the Respondents’ expert is correct in that the performance of an MRI/MRA or CT angiogram would have revealed the AVM. (They concede the conventional angiogram would have been diagnostic and fail to deny the CT angiogram would have been diagnostic, therefore, we continue to submit these facts render this appeal moot). Their expert relies on the assertion that the AVM was MRI occult ( but not CT angiogram occult) as they interpret a report of Dr. Shapiro. (R 932). We note that the reason why the non- interventional studies performed after the alleged date of the bleed do not reveal an AVM is not because the AVM was MRI occult prior to the bleed as implied by Dr. Kaufman but because of the existence of the hemorrhage hid the condition as confirmed by the record and Respondents’ expert making it MRI occult. We also note that the Appellants’ expert never defines MRI occult and claims the AVM was MRI occult before the bleed using comments by treating physicians used only after the bleed. There are numerous statements in the record concerning the inability to see the cause of the condition due to the blood found on the non-interventional studies. The -27- Respondents’ expert states that the existence of the blood caused a delay in diagnosis (R 1017) due to the need to wait until the hemorrhage dissipated. (R 1007). This opinion is supported by both Dr. McKhann (R 868, 871) and Dr. Shapiro (R 931). This is also a fact ignored by Appellant and their expert. Further, the Appellants attempt to impress upon this Court that Respondents’ expert’s opinion is conclusory because the expert did not “...state what the...testing might have disclosed.” (At Page 18). We quote the Respondents’ expert, “The goal of early detection is the prevention of rupture with its attendant consequences. It is my opinion, with a reasonable degree of medical certainty, that had an MRI/MRA or CTA or conventional angiogram been performed from November 2, 2010 up to November 30, 2010, the presence of Ms. Keating Brooks' AVM would have been revealed allowing timely diagnosis and treatment.” (R 1019). We note, once again, the Appellants concede the angiography would have disclosed the AVM and even with the hemorrhage masking the AVM, an MRI/MRA gave Dr. Shapiro notice of the existence of the AVM later diagnosed. (R 932). We suggest it is a question for the jury as to whether an MRI/MRA taken before the bleed would have created the same concern in a practitioner following good and accepted medical practice. The Respondents’ expert also noted that Ms. Keating Brooks experienced symptoms of her AVM pre-rupture. She experienced headache for over one month -28- with a history of falling on two and possibly three separate occasions and severe continuing pain in one area of her head which worsened during the course of her treatment with Dr. April. The expert noted that in addition she experienced weakness, visual disturbances, confusion and cognitive changes. (R 1020). As such, the expert clearly established a question of fact, at a minimum, as to why these continuing complaints were mis-diagnosed as migraine related and further testing not ordered even if this court chooses to ignore the patently absurd notion that a 15 year old negative MRI is in any way diagnostic. The Appellants rely on cases from this Department which we submit do not support their claim of entitlement to a dismissal of the Respondents’ action. In Foster-Sturrup v. Long, 95 A.D.3d 726 (1 Dept. 2012) this Court determined that the Appellant had established two facts. The Appellant established a blood test would not provide location of pregnancy and that it was too early in a pregnancy to order a sonogram. This Court also ruled that plaintiff’s expert did not address these issues. In this case, the Respondents’ laid out numerous reasons as to why further testing was indicated and further addressed the issue as to whether the tests would have revealed useful diagnostic evidence. In this case, Appellants’ expert, Dr. Kaufman, claimed that the standards of good and accepted medical practice were met by Dr. April telling Ms. Keating Brooks on November 8, 2010 that if she were not -29- doing better she should so advise him. (R 46). The record reveals that is exactly what she did on the second visit and the third visit without any significant change in treatment or investigation. This expert attempts to have this Court rule that the failure to order an MRI, the very test ordered by Dr. Cesar upon his evaluation of Ms. Keating Brooks, was unnecessary since Ms. Keating Brooks had undergone an MRI 20 years ago and it was negative. (R 46). Somehow one would imagine the expert in Foster-Sturrup (supra) provided a better basis for his or her opinion. With regard to the rank speculation by Appellants that the AVM would not have been seen on the MRI/MRA Dr. April did not order, the Respondents’ expert, however, submits that the AVM would have been diagnosable on MRI/MRA before the rupture creating, at a minimum, a question of fact. Further, the record reveals that once the hemorrhage occurred, the AVM became almost impossible to see. Supporting the Respondents’ expert’s opinion, however, is the fact that even in the presence of the blood there were treating physicians who had an AVM in their differential diagnosis. (R 870, 871, 931, 932). We submit that there exists a question of fact, at least, as to whether the AVM or an indication of an AVM would have been seen prior to the rupture. Respondents submit that Foster-Sturrup (supra) is not applicable to the case presently before this Court. Having said this, we are constrained to note that Dr. Kaufman’s “opinion” that -30- an MRI would not have lead to a diagnosis of the AVM is simply and purely speculative. Assessing the facts, Dr. Kaufman states this because, in his opinion, the AVM was MRI occult. (R 56). He does not explain the meaning of the term but implies it means completely non-diagnosable by testing. However, it is Respondents’ understanding it only means a condition is difficult to diagnose on testing but not impossible. Dr. Kaufman does not suggest otherwise. Dr. Kaufman speculates that the AVM would not have been seen on MRI/MRA (Apparently takes no position on the CT angiography) and since Dr. April failed to order one in deviation from good and accepted medical practice, he cannot know. We note that Dr. Kaufman bases his opinion on the alleged absence of negligence on the part of Dr. April on four “facts.” We suggest the creation of a question of fact on any one of those predicates requires rejection of this appeal. He states, “Further, radiological imaging or testing was not warranted or indicated as of November 15th based upon the patient’s presenting complaints, negative CT of November 2nd, prior negative MRI, and Dr. April’s examination on this date.” (R 46). Initially, Respondents note that Dr. April conceded further testing was required at his deposition when he testified in pertinent part, “... signs, I was concerned about something I had not already considered and my list of considerations – I wanted to do more studies.” (R 672). Of course, he changed this testimony without real -31- explanation to “...signs, further studies on this date were not indicated and I did not recommend any on November 15, 2010.” (R 762). Respondents submit Dr. April needs to explain this inexplicable change of testimony to a jury. Further, the Respondents’ expert explains in a very thorough affirmation that it was a deviation to assume that the presenting complaints and the alleged fall was the cause and not the result of the undiagnosed condition. (R 1004). The expert noted that Ms. Keating Brooks’ complaints worsened over the ensuing weeks with reports of falls, balance compromise, visual disturbances and sensitivity to light. Ms. Brooks feared something was wrong. (R 1005). Dr. April conceded the complaints were lasting longer than he would like. (R 682-683). The Respondents’ expert affirmed that reliance on the November 2, 2010 is a deviation in that a CT scan does not provide necessary information with respect to vascular structures in the brain, a fact which Dr. April conceded is the purpose of an MRI/MRA providing necessary information to the diagnostician. The expert stated that proper practice required radiologic imaging with the capability of greater definition of anatomic structures including the cerebral vasculature. (R 1015). We will not reiterate the Respondents’ rejection of the use of a 20 year old MRI as diagnostic of anything. Suffice to say, no one would accept a claim that assuming Ms. Keating Brooks was complaining of arm pain after a fall, a practitioner could follow good and accepted medical practice by asserting that she -32- had undergone an x-ray of the arm when she was 15 and that failed to reveal a break so no further treatment was needed. The point herein is that the very foundation of the defense to Ms. Keating Brooks claims is riddled with weaknesses which fail to shift the burden to the Respondents but, at a minimum, leave open much to be resolved by a jury. The Appellants have the same problem with the attempted use of Holmes v. Bronx Lebanon Hosp. Ctr., 128 A.D.3d 596 (1 Dept. 2015). In that case, this Court noted that the evidence revealed that the inflammation which the plaintiff’s expert asserted would be seen on testing did not even exist at the time of the emergency room visit. No one, not even the Appellants, suggest that the AVM did not exist at the time of the treatment of Dr. April. As the Respondents’ expert informed the Court below, the reason why the MRI was needed was because: “A CT scan does not provide necessary information with respect to vascular structures in the brain a fact which Dr. April conceded is the purpose of an MRI/MRA and CT angiogram is to provide necessary information to the diagnostician and are the tests used to diagnose AVM. (R 731). Proper practice required radiologic imaging with the capability of greater definition of anatomic structures including the cerebral vasculature.” (R1015, 1016). The expert also noted that AVMs characteristically enlarge over time. (R 1016). -33- The Appellant is attempting to use his own negligence as a sword in this instance. Since he never ordered an MRI, his expert cannot know if the AVM would not have been seen prior to the bleed given the MRI’s capability of greater definition of anatomic structures including the cerebral vasculature. The fact that it became MRI occult after the bleed has no relevance to the ability to observe it before. Further, the Appellants concede a conventional angiography would have been diagnostic and fail to offer an argument that against the Respondents’ position the CT angiography would be diagnostic as well. As the Appellants’ expert suggested, the very fact that the Appellants’ expert actually made the bizarre assertion that Dr. April’s reliance on an MRI that was 20 years old to form a diagnosis constituted good and accepted practice proves that the Appellants know an MRI was required, would have been diagnostic and the failure to order one needed to be explained away. This truly absurd defense requires jury review. Proximate Cause and the Bleed The Appellant argues, “For the sake of completeness, we note here that no proximate causation can possibly be found from any events that occurred after Brooks' bleed. This is so because it is Brooks' theory of the case that the bleed should have been prevented and Brooks concedes that the bleed occurred on the morning of -34- November 30.” Of course, Ms. Keating Brooks and her expert concede no such thing. The expert for the Appellants never stated in his original affirmation that even he held that opinion. He suggests it is “conceded” and he did suggest that Dr. McKhann posited that possibility as discussed earlier but the record reveals no proof of the bleed having already occurred at the time of the November 30, 2010 telephone call to Dr. April. Further, even if the bleed had begun when Ms. Keating Brooks’ complaints were ignored by Dr. April on November 30, 2010, no one, other than the attorney, suggests that earlier diagnosis of the bleed, while ongoing, would not have prevented at least some of the damage. This must await proof in proper evidentiary form at the time of trial. POINT II RESPONDENT CLEARLY CREATED A QUESTION OF FACT, AT LEAST, WITH REGARD TO THE DIAGNOSIS OF THE AVM ON CT ANGIOGRAM AND CONVENTIONAL ANGIOGRAM AS THE FORMER IS NOT DENIED BY APPELLANTS AND THE LATTER IS CONCEDED The Appellants concede that a conventional angiogram would have diagnosed the AVM. The Appellants do not refute that a CT angiogram would have diagnosed the AVM. The Appellants do not even refute that a CT angiogram was required as stated by Respondents’s expert. As such, this appeal must fail. -35- Having said that, the Respondents note that the issue raised by the Appellants is that there was no indication for the conventional angiogram under the circumstances. This argument brings us full circle to the very premise of the Appeal. The Appellant asserts that nothing changed with regard to Ms. Keating Brooks’ complaints during the period of time that she was under Dr. April’s care. This statement is categorically false. As noted by the Respondents’ expert, Dr. April and his expert claim that a diagnosis of recurring migraine was appropriate despite the fact that Ms. Keating Brooks had not suffered a migraine in some 20 years. Ms. Keating Brooks informed Dr. April that the headaches she was experiencing were completely different and not "migraine" in nature. Between the first two visits, Ms. Keating Brooks' headaches, thought processing and confusion worsened. Additionally, her balance was compromised and she experienced visual disturbances and sensitivity to light. Significantly, as Ms. Keating Brooks reported to Dr. April on November 8, 2010, she had fallen on two occasions since her November 2, 2010 initial visit, (R 662) representing a total of three falls in a relatively short time. Ms. Keating Brooks returned to Dr. April as instructed on November 15, 2010. She experienced ongoing headaches and now sensitivity to light, nausea, and continuing difficulty with mental focus, concentration -36- and processing which progressed through the month getting worse. (R 198). Ms. Keating Brooks' next contact with Dr. April was a phone call on November 30, 2010 to inform him her symptoms were worsening and she was experiencing perceptual difficulty, confusion and visual disturbance. She had a severe blinding headache. Ms. Keating Brooks told Dr. April she had lost areas of vision, experienced increased pain and sensitivity to light and noise and had a disturbance in her visual field. Dr. April literally told her to take Aleve and see him in the morning. (R 199-201) (R 692). Respondents’ expert states that a conventional angiogram was required and would have been diagnostic. Appellants’ expert concedes it would have been diagnostic but was not indicated. That is a classic question of fact. We also submit that his opinion that the test was not indicated is premised upon a mis-reading of the facts. His opinion is based upon the alleged “fact” that Ms. Keating Brooks’s complaints were resolving and not continuing or, in some ways, worsening. The record reveals that the basis of his opinion is not supported by Ms. Keating Brooks testimony (R 198) or, in fact, the testimony of Dr. April (i.e. R 671, 672, 673). The argument that a conventional angiography has risks is a red herring. We submit that every test has risks. More importantly, if the test was not indicated, as suggested by the Appellants, the risks are irrelevant to issues before this Court. Since -37- Dr. April failed, utterly, to consider a conventional angiography as a diagnostic tool. Moreover, there is no testimony, record or statement from Dr. April that he even considered the test and rejected it after weighing the risks and benefits. Further, the Appellants’ expert lists risks for a conventional angiography (R 52) but does not state that the test is contra-indicated in his original affirmation. He states it is not the standard of care but not because of its risks but because of some practice guideline not even before this Court in evidentiary form. (R 54). Of course, he concedes that Ms. Keating Brooks underwent this very test after the bleed was allowed to occur by Dr. April’s negligence and none of the injury and death producing risks came to pass. It is only in his second improper affirmation, does he further discuss the risks and then only states that somehow he knows that the risks were the reason later practitioners did not order the test for seven months. (R 1046-1047). How the Appellants’ expert gained knowledge of the thought precesses of the subsequent treating physicians is not explained. Of note, the Appellants’ expert did not say the conventional angiogram was actually contraindicated but that it would not be the test of first choice. (R 1047). It would seem that the Appellants’ expert and the Respondents’ expert are of the same opinion. The Respondents’ expert listed the non-invasive testing first, MRI/MRA, -38- CTA and conventional angiography. In fact, only the counsel for the Appellants have ever used the word “contraindicated” with regard to the use of conventional angiography. (Brief at Page 22). Appellants’ expert states that it has risks, (R 52) would not be the test of first choice (R 1047) and at the time of Dr. April’s care and treatment was not required by the standard of care (R 54). None of those statements support the claim that the test is contraindicated. Finally, Respondents note that the Appellants expert fails to defend against the claim that CT angiography, as opposed to conventional angiography would have been diagnostic of the AVM and, as such, the appeal must fail. As this Court stated in citing Ritt by Ritt v. Lenox Hill Hosp., 182 A.D.2d 560 (1 Dept. 1992): [O]nly when a defendant refutes "by specific factual reference the allegations of malpractice made by plaintiff" (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 326, 508 N.Y.S.2d 923, 501 N.E.2d 572) does the burden of going forward with the proof shift to the plaintiff "to produce evidentiary proof in admissible form establishing the existence of material questions of fact" (68 N.Y.2d at 326-327, 508 N.Y.S.2d 923, 501 N.E.2d 572, supra). We submit that if this Court follows well known precedent and views the evidence before it in a light most favorable to plaintiff and this Court draws all reasonable inferences in favor of the nonmoving party (Assaf v. Ropog Cab Corp., 153 A.D.2d 520 (1st Dept. 1989), the order of the motion Court should be affirmed. CONCLUSION THE COURT BELOW DID NOT ERR IN DENYING THE APPELLANTS’ MOTION FOR SUMMARY JUDGMENT AND THIS COURT SHOULD AFFIRM THE DECISION. Dated: New York, New York January 3, 2017 Respectfully submitted Kelner & Kelner, Esqs. /DzjUvJ (