From Casetext: Smarter Legal Research

Stowell v. Safee

Appellate Division of the Supreme Court of New York, Fourth Department
Jun 10, 1998
251 A.D.2d 1026 (N.Y. App. Div. 1998)

Opinion

June 10, 1998

Appeal from Order of Supreme Court, Erie County, Mintz, J. — Summary Judgment.

Present — Denman, P. J., Green, Pigott, Jr., Balio and Boehm, JJ.


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 N.Y.2d 955, 956-957; Muratore v. Tierney, 229 A.D.2d 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 A.D.2d 902, 903, lv denied 74 N.Y.2d 605; see, Weaver v. Derr, 242 A.D.2d 823; Antorino v. Mordes, 202 A.D.2d 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 A.D.2d 596; see also, Clifford v. Black Clawson Co., 145 A.D.2d 808, lv dismissed 73 N.Y.2d 995, lv denied 76 N.Y.2d 714).


Summaries of

Stowell v. Safee

Appellate Division of the Supreme Court of New York, Fourth Department
Jun 10, 1998
251 A.D.2d 1026 (N.Y. App. Div. 1998)
Case details for

Stowell v. Safee

Case Details

Full title:SANDRA L. STOWELL et al., Respondents, v. JAMES SAFEE, Appellant

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jun 10, 1998

Citations

251 A.D.2d 1026 (N.Y. App. Div. 1998)
674 N.Y.S.2d 228

Citing Cases

Roger v. Soos

Additionally, the medical records submitted by defendant included a report from plaintiff's own expert in…

Taber v. Skulicz

The only proof in admissible form submitted by plaintiff in opposition is the affidavit of a treating…