Metrow v. St. John the Baptist Roman Catholic Church , 639 N.Y.2d 748 ( 1996 )

Memorandum: Supreme Court did not err in denying defendants’ motion to dismiss the complaint on the ground that plaintiff did not suffer a serious injury as defined in Insurance Law § 5102 (d). On a motion to dismiss that has not been converted to a motion for summary judgment, affidavits submitted by the defendant will seldom, if ever, warrant dismissal unless "the affidavits establish conclusively that plaintiff has no cause of action” (Rovello v Orofino Realty Co., 40 NY2d 633, 636; see also, Hinrichs v Youssef, 214 AD2d 604). The evidence submitted by defendants does not establish conclusively that plaintiff has no cause of action. (Appeal from Order of Supreme Court, Kings County, Aronin, J; — Dismiss Complaint.) Present-Green, J. P., Lawton, Wesley, Doerr and Davis, JJ.