Rodriguez v. Wilson

— Order unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Viewing the evidence, as we must, in the light most favorable to the non-moving party, we conclude that there is a triable issue concerning whether plaintiff suffered a serious injury within the meaning of Insurance Law § 5102 (d) and, therefore, summary judgment must be denied (see, Hourigan v McGarry, 106 AD2d 845 , appeal dismissed 65 NY2d 637 ). (Appeal from Order of Supreme Court, Erie County, Francis, J. — Dismiss Complaint.) Present — Callahan, A. P. J., Denman, Pine, Balio and Lawton, JJ.