Spina v. Melvin

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 AD2d 859 ; see also, Moreno v Delcid, 262 AD2d 464 , 465; Nathanson v David, 244 AD2d 930 ). (Appeal from Order of Supreme Court, Erie County, Michalek, J. — Summary Judgment.) Present — Pine, J. P., Hayes, Hurlbutt, Kehoe and Lawton, JJ.