In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Suffolk County, dated July 29, 1971, which dismissed the complaint, upon the trial court's granting of defendant's motion for that relief based on the opening statement of plaintiff's counsel at a jury trial. Judgment reversed, on the law, and new trial granted, with costs to abide the event. Upon the record before us, which includes the pleadings, as well as plaintiff's counsel's opening statement at the trial, it was improper to nonsuit plaintiff on that opening statement ( Rivera v. Board of Educ. of City of N.Y., 11 A.D.2d 7). Latham, Acting P.J., Shapiro, Gulotta, Brennan and Benjamin, JJ., concur.