Janie Ramsey, et al., appellants, v. RYAN

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Supreme Court, Appellate Division, Second Department, New York.

Florence YOUNG, plaintiff, Janie Ramsey, et al., appellants, v. Walter T. RYAN, et al., respondents.

Decided: October 25, 1999

GUY JAMES MANGANO, P.J., DAVID S. RITTER, DANIEL W. JOY, LEO F. McGINITY and NANCY E. SMITH, JJ. Anthony W. Cummings, Charlotte, N.C., for appellants. Scalzi & Nofi, Melville, N.Y. (Vincent J. Nofi of counsel), for respondent Walter T. Ryan. Russo, Apoznanski & Hellreich, Woodbury, N.Y. (John A. Asta of counsel), for respondent Charles D. Schlipe.

In an action to recover damages for personal injuries, the plaintiffs Janie Ramsey and Cynthia Manning appeal from a judgment of the Supreme Court, Suffolk County (Henry, J.), entered August 8, 1997, which, upon an order of the same court dated May 5, 1997, granting the respective motions of the defendants for summary judgment dismissing the complaint insofar as asserted against them on behalf of the appellants on the ground that neither appellant sustained a serious injury within the meaning of Insurance Law § 5102(d), dismissed the complaint insofar as asserted by the appellants and severed the action.

ORDERED that the judgment is affirmed, with one bill of costs.

 The Supreme Court properly granted the respective motions of the defendants for summary judgment dismissing the complaint insofar as asserted against them by the appellants.   The defendants established a prima facie case that neither appellant sustained a serious injury within the meaning of Insurance Law § 5102(d) in the subject collision (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   Thus, the burden shifted to the appellants to come forward with sufficient evidence that they sustained a serious injury (see, Gaddy v. Eyler, supra;  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 appellants' evidence was insufficient.   The unsworn medical reports which they submitted in opposition to the motions were inadmissible (see, Grasso v. Angerami, 79 N.Y.2d 813, 814, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Mobley v. Riportella, 241 A.D.2d 443, 444, 660 N.Y.S.2d 57).   With respect to the appellant Cynthia Manning, the affirmed report of Dr. Michael O. Sauter did not raise a triable issue of fact as to whether she sustained a serious injury.   Without admissible evidence to support their claims of injuries, the appellants' respective affidavits, consisting merely of self-serving, subjective complaints of pain, were without probative value (see, Rum v. Pam Transp., 250 A.D.2d 751, 673 N.Y.S.2d 178;  Lincoln v. Johnson, 225 A.D.2d 593, 639 N.Y.S.2d 124;  Barrett v. Howland, 202 A.D.2d 383, 608 N.Y.S.2d 681;  LeBrun v. Joyner, 195 A.D.2d 502, 600 N.Y.S.2d 262).

 The appellants' opposition papers contained an affirmation by the appellant Manning's treating chiropractor.   This court has held that affirmations by chiropractors which are not subscribed before a notary or other authorized official do not constitute evidence in admissible form (see, CPLR 2106;  Doumanis v. Conzo, 265 A.D.2d 296, 696 N.Y.S.2d 201;  Rum v. Pam Transp., supra;  McNeil v. Crutchley, 250 A.D.2d 655, 671 N.Y.S.2d 692;  Gill v. O.N.S. Trucking, 239 A.D.2d 463, 657 N.Y.S.2d 452).   The case of Semler v. Molinelli, 245 A.D.2d 363, 666 N.Y.S.2d 437 is not to the contrary, as the affirmation by the plaintiff's chiropractor in that case was sworn to before a notary public.

MEMORANDUM BY THE COURT.

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