Stowell v. Safee

251 A.D.2d 1026, 674 N.Y.S.2d 228, 1998 N.Y. App. Div. LEXIS 7065

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 1998
• Status: Published

Opinion

—Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying defendant’s motion for summary judgment dismissing the complaint. Defendant met his initial burden of establishing a prima facie case that Sandra L. Stowell (plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955, 956-957; Muratore v Tierney, 229 AD2d 1018). In opposition to the motion, plaintiff submitted the affidavit of her treating neurologist, who states that, as a result of the accident, plaintiff sustained a permanent disability and significant limitation of motion in her lumbar region caused by myofascial pain syndrome. The neurologist’s conclusions, however, are based upon plaintiff’s subjective complaints of pain and are unsupported by objective medical proof. “Projections of disability based upon subjective complaints of pain without objective medical findings are insufficient to defeat a motion for summary judgment” (McKnight v LaValle, 147 AD2d 902, 903, lv denied 74 NY2d 605; see, leaver v Derr, 242 AD2d 823; Antorino v Mordes, 202 AD2d 528, 529). The unsworn statements of plaintiff’s treating neurologist contained in the unsworn report of defendant’s expert neurologist are not in admissible form and are therefore insufficient to raise a triable issue of fact (see, Tatti v Cummings, 193 AD2d 596; see also, Clifford v Black Clawson Co., 145 AD2d 808, lv dismissed 73 NY2d 995, lv denied 76 NY2d 714). (Appeal from Order of Supreme Court, Erie County, Mintz, J. — Summary Judgment.) Present — Denman, P. J., Green, Pigott, Jr., Balio and Boehm, JJ.