Opinion
February 11, 1985
Appeal from the Supreme Court, Rockland County (Slifkin, J.).
Appeal from the order dated April 20, 1983 dismissed as academic, in light of our determination with respect to the order dated June 14, 1983 granting renewal.
Order dated June 14, 1983 reversed, insofar as appealed from, on the law, order dated April 20, 1983 vacated, motion denied, and complaint reinstated.
Plaintiff is awarded one bill of costs.
On October 9, 1980, plaintiff, while driving along the New York State Thruway, was struck in the rear by a vehicle driven by defendant Julia Ross. As a result of the collision, plaintiff claimed to have sustained serious injury as defined in Insurance Law (former) § 671 (4).
Special Term erroneously and prematurely dismissed plaintiff's complaint. Without expressing an opinion as to whether plaintiff will ultimately be able to establish the truth of the allegations pleaded, we find that a cause of action was sufficiently stated. On a motion to dismiss for insufficiency, it is not the function of the court to evaluate the merits of a case ( see, 219 Broadway Corp. v Alexander's, Inc., 46 N.Y.2d 506, 509; People v Penn Cent. Co., 33 A.D.2d 860). Lazer, J.P., Bracken, Rubin and Eiber, JJ., concur.