Opinion
(1461) CA 01-00209
December 21, 2001.
(Appeal from Order of Supreme Court, Erie County, Michalek, J. — Summary Judgment.)
PRESENT: PINE, J.P., HAYES, HURLBUTT, KEHOE AND LAWTON, JJ.
Order unanimously reversed on the law without costs, motion denied and complaint reinstated.
Memorandum:
Supreme Court erred in granting defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Although defendant met his initial burden on the motion, plaintiff raised a triable issue of fact by her own affidavit and that of her treating chiropractor ( see, Rodriguez v. Duggan, 266 A.D.2d 859; see also, Moreno v. Delcid, 262 A.D.2d 464, 465; Nathanson v. David, 244 A.D.2d 930).