— Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered January 21, 2009 in a personal injury action. The order denied defendant’s motion for summary judgment. It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Same memorandum as in Progressive Halcyon Ins. Co. v Giacometti (72 AD3d 1503 [2010]). Present — Smith, J.P., Fahey, Carni, Lindley and Sconiers, JJ.