Gaffey v. Nelson , 765 N.Y.S.2d 306 ( 2003 )

Appeal from an order of Supreme Court, Oswego County (McCarthy, J.), entered September 5, 2002, which denied defendant’s motion to dismiss the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: We affirm for reasons stated in the decision at Supreme Court, Oswego County (McCarthy, J.). We add only that the evidence submitted on the motion to dismiss does not conclusively establish that Buckley v National Frgt. (90 NY2d 210 [1997]) is applicable under the facts of this case and bars plaintiffs action (see generally Metrow v St. John the Baptist R.C. Church, 225 AD2d 1101 [1996]). Present — Pigott, Jr., P.J., Pine, Wisner, Scudder and Kehoe, JJ.