TABER v. Darrel W. Mason, Sr., Laidlaw Transit, Inc., and Dunkirk City School District, Defendants-Respondents-Appellants. (1999)

 Supreme Court erred in denying the motion of defendants Kristen A. Skulicz and Daniel T. Skulicz and the cross motion of the remaining defendants for summary judgment dismissing the complaint and cross claims.   Defendants met their initial burden of establishing as a matter of law that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).   The only proof in admissible form submitted by plaintiff in opposition is the affidavit of a treating physician who avers that, because of back pain, plaintiff is unable to lift in excess of 30 pounds.  “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, 537 N.Y.S.2d 421, lv. denied 74 N.Y.2d 605, 543 N.Y.S.2d 398, 541 N.E.2d 427;  see, Stowell v. Safee, 251 A.D.2d 1026, 674 N.Y.S.2d 228;  Thousand v. Hedberg, 249 A.D.2d 941, 672 N.Y.S.2d 579).   That affidavit also is not sufficient to create a triable issue of fact with respect to whether plaintiff was curtailed from performing her usual activities “to a great extent rather than some slight curtailment” for the statutory 90 days out of 180 days following the accident (Licari v. Elliott, 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570, 441 N.E.2d 1088).

Order unanimously reversed on the law without costs, motion and cross motion granted and complaint and cross claims dismissed.

MEMORANDUM: