PUENTES v. MARTINEZ (2003)

Order, Supreme Court, New York County (Milton Tingling, J.), entered May 31, 2002, which granted defendants' motion and cross motion for summary judgment and denied, as academic, plaintiffs' cross motion to strike defendant Martinez's answer, unanimously affirmed, with costs.

 Plaintiffs submitted unsworn medical reports from a chiropractor on the issue of serious injury, a flaw which rendered them insufficient to defeat summary judgment (see Sanchez v. Romano, 292 A.D.2d 202, 739 N.Y.S.2d 368;  Graham v. Shuttle Bay, Inc., 281 A.D.2d 372, 722 N.Y.S.2d 541);  and plaintiffs' proffered excuse for failing to obtain an affidavit from the chiropractor was unacceptable.   Even if tendered in admissible form, the reports were deficient and failed to raise a triable issue of fact as to whether any of the plaintiffs sustained a “serious injury” under Insurance Law § 5102(d).  Notably, the reports, all from the same chiropractor, do not indicate the dates of examination or treatment and do not suggest that there is any permanency with regard to any of the injuries allegedly sustained.   Additionally, these reports did not properly assess plaintiffs' limitations and are wholly speculative.

Plaintiffs' testimony failed to rectify the deficiency.   Their testimony established only that each of them had attended an unspecified number of physical therapy sessions that concluded at an unspecified date, and that none of them were currently receiving medical treatment.   Plaintiffs' subjective claims of pain, unsupported by competent medical evidence, are insufficient to withstand summary judgment (Graham v. Shuttle Bay, Inc., supra ).