Swarthout v. Magee

—Peters, J.

Appeal from an order of the Supreme Court (Ellison, J.), entered September 4, 1997 in Chemung County, which denied defendant’s motion for summary judgment dismissing the complaint.

Plaintiff commenced this action to recover for neck and back injuries allegedly sustained when her vehicle was struck from behind by a vehicle operated by defendant. Following discovery, defendant moved 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). Finding that the opposing affirmation of…