Kaywood v. Pumillo

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Carter, J.), dated November 9, 1998, as denied that branch of their motion which was for summary judgment dismissing the complaint. Ordered that the order is affirmed insofar as appealed from, with costs. We agree with the Supreme Court that the plaintiffs affidavit, along with the affidavit of his chiropractor, created an issue of fact as to whether the plaintiff sustained a medically-determined injury which prevented him from performing substantially all of the material acts constituting his usual and customary daily activities during at least 90 out of the first 180 [383] days following the accident (see, Insurance Law § 5102 [d]; Greco v Five Five Garage Corp., 123 AD2d 422). O’Brien, J. P., Ritter, Joy, Altman and Smith, JJ., concur.