THOUSAND v. HEDBERG (1998)

 Supreme Court properly granted defendants' motion for summary judgment and dismissed the complaint.   Defendants submitted evidence in admissible form establishing as a matter of law that 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, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Borrman v. Bogold, 229 A.D.2d 949, 645 N.Y.S.2d 237).  “The burden then shifted to plaintiff to come forward with sufficient evidence to overcome defendant[s'] motion by demonstrating that [he] sustained a serious injury within the meaning of the No-Fault Insurance Law” (Gaddy v. Eyler, supra, at 957, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  accord, Muratore v. Tierney, 229 A.D.2d 1018, 645 N.Y.S.2d 178).   Plaintiff failed to meet that burden.   The report of plaintiff's treating physician, who considered plaintiff to be minimally partially disabled as the result of cervical and lumbar strain, is insufficient to raise a triable issue of fact whether plaintiff's injury resulted in a “significant limitation of use of a body function or system” (Insurance Law § 5102[d];  see, Licari v. Elliott, 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570, 441 N.E.2d 1088;  Rhind v. Naylor, 187 A.D.2d 498, 589 N.Y.S.2d 605;  Ray v. Ficchi, 178 A.D.2d 988, 989, 578 N.Y.S.2d 944, lv. denied 80 N.Y.2d 958, 591 N.Y.S.2d 133, 605 N.E.2d 869).   The unsworn report of plaintiff's chiropractor does not constitute proof in admissible form (see, Grasso v. Angerami, 79 N.Y.2d 813, 814, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Lough v. City of Syracuse, 191 A.D.2d 1018, 1019, 594 N.Y.S.2d 947).   Finally, plaintiff's subjective complaints of pain, unsupported by objective medical evidence, are insufficient to raise a triable issue of fact (see, Scheer v. Koubek, 70 N.Y.2d 678, 679, 518 N.Y.S.2d 788, 512 N.E.2d 309;  Kimball v. Baker, 174 A.D.2d 925, 926-927, 571 N.Y.S.2d 621).

Order unanimously affirmed without costs.

MEMORANDUM: