CASTANO v. SYNERGY GAS CORPORATION (1998)

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Shaw, J.), dated May 6, 1997, which denied their motion for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The Supreme Court improperly denied the defendants' motion for summary judgment dismissing the complaint.   The defendants established a prima facie case that the injured plaintiff did not sustain a serious injury (see, Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176), thereby shifting the burden to the plaintiffs to raise a triable question of fact on that issue (see, Licari v. Elliott, 57 N.Y.2d 230, 235, 455 N.Y.S.2d 570, 441 N.E.2d 1088;  Lopez v. Senatore, 65 N.Y.2d 1017, 494 N.Y.S.2d 101, 484 N.E.2d 130).   The plaintiffs failed to meet this burden.

The unsworn reports of the injured plaintiff's treating physician and chiropractor should not be considered, as they were not submitted in admissible form (see, Grasso v. Angerami, 79 N.Y.2d 813, 814, 580 N.Y.S.2d 178, 588 N.E.2d 76).   Additionally, the respective affidavits submitted by these medical providers were insufficient to raise a triable issue of fact.   Their statements of permanent injury were patently tailored to meet the statutory requirements (see, Lopez v. Senatore, 65 N.Y.2d 1017, 1019, 494 N.Y.S.2d 101, 484 N.E.2d 130;  Antorino v. Mordes, 202 A.D.2d 528, 609 N.Y.S.2d 273), and their conclusions were based upon examinations performed in 1994, three years before the affidavits were prepared (see, Schultz v. Von Voight, 216 A.D.2d 451, 452, 628 N.Y.S.2d 388, affd. 86 N.Y.2d 865, 635 N.Y.S.2d 167, 658 N.E.2d 1040;  Beckett v. Conte, 176 A.D.2d 774, 575 N.Y.S.2d 102;   Philpotts v. Petrovic, 160 A.D.2d 856, 857, 554 N.Y.S.2d 289).

Finally, the plaintiff's subjective complaints of pain, without evidence of an objective underlying injury, were insufficient to establish a serious injury as defined by Insurance Law § 5102(d) (see, Scheer v. Koubek, 70 N.Y.2d 678, 518 N.Y.S.2d 788, 512 N.E.2d 309;  Iglesias v. Inland Freightways, 209 A.D.2d 479, 480, 619 N.Y.S.2d 59).

MEMORANDUM BY THE COURT.