Taber v. Skulicz

—Order unanimously reversed on the law without costs, motion and cross motion granted and complaint and cross claims dismissed. Memorandum: 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 AD2d 902, 903, lv denied 74 NY2d 605; see, Stowell v Safee, 251 AD2d 1026; Thousand v Hedbsrg, 249 AD2d 941). 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 NY2d 230, 236). (Appeals from Order of Supreme Court, Chautauqua County, Gerace, J. — Summary Judgment.) Present — Green, J. P., Pine, Wisner, Callahan and Balio, JJ.