Drenckhahn v. Simmons

Order unanimously affirmed with costs. Memorandum: In moving for summary judgment, defendants failed to negate the existence of a factual issue whether the injury or impairment prevented plaintiff from performing substantially all of his usual and customary daily activities for at least 90 of the first 180 days following the accident (see, Insurance Law § 5102 [d]). Summary judgment was, therefore, properly denied (cf., Alvarez v Prospect Hosp., 68 NY2d 320, 324). (Appeal from Order of Supreme Court, Queens County, Hentel, J.—Summary Judgment.) Present—Callahan, J. P., Denman, Green, Balio and Davis, JJ.