Zbierska v. Women & AIDS Resource Network, Inc.

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Lisa, J.), dated May 12, 1997, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d). Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated. The plaintiff raised a triable issue of fact (see, CPLR 3212 [b]) as to whether her injuries prevented her from performing substantially all of her usual and customary activities for at least 90 of the 180 days following an accident (cf, Horan v Mirando, 221 AD2d 506). On the day of the accident, January 17, 1995, the plaintiff was employed as a real estate salesperson by Phillips Realty. In opposition to the motion for summary 611 judgment, she submitted an affidavit sworn to by James Phillips, the owner of that company. Mr. Phillips indicated that, with the exception of “approximately four days”, the plaintiff was absent from work from January 18, 1995, until May 13, 1995, thus confirming the assertions made in the plaintiffs affidavit which was also submitted in opposition to the motion (cf., Phillips v Costa, 160 AD2d 855). Rosenblatt, J. P., Sullivan, Joy, Altman and Luciano, JJ., concur.