Opinion
March 7, 1994
Appeal from the Supreme Court, Suffolk County (Underwood, J.).
Ordered that the order and judgment is modified, on the law, by deleting therefrom the provision dismissing the plaintiffs' third cause of action alleging damage to their motor vehicle; as so modified, the order and judgment is affirmed, without costs or disbursements.
We agree with the trial court that the plaintiffs failed to present evidence that the plaintiff Donald Barrett suffered a "serious injury" within the meaning of Insurance Law § 5102 (d). In order to establish a "significant limitation of use of a body function or system", a plaintiff must present objective quantified evidence of the extent or degree of the limitation and its duration (see, McHaffie v. Antieri, 190 A.D.2d 780; Oswald v Ospina, 187 A.D.2d 570). Mere subjective complaints of pain alone, as well as medical opinions clearly based upon such complaints, are insufficient to raise a triable issue of fact (see, Malloy v Brisco, 183 A.D.2d 704). A most telling fact in the present case is that by his own testimony, the plaintiff Donald Barrett missed no days of work from his job as a warehouse worker and was at most prevented from performing his duties as a volunteer firefighter in as "aggressive" a manner as he was accustomed to (see, Craft v. Brantuk, 195 A.D.2d 438). Taken together, the evidence establishes nothing more than a mild back sprain which is insignificant within the meaning of the statute (see, Rhind v Naylor, 187 A.D.2d 438).
However, the Supreme Court improperly dismissed the plaintiffs' cause of action to recover for damages to their automobile. The defendants' motions to dismiss pursuant to CPLR 3211 (a) (7) were not directed to this cause of action, and no evidence was presented on the issue. Sullivan, J.P., Pizzuto, Joy and Goldstein, JJ., concur.