Simon v. Garrison

Appellate Division of the Supreme Court of New York

Simon v. Garrison

30 A.D.2d 546, 292 N.Y.S.2d 822, 1968 N.Y. App. Div. LEXIS 4040

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 13, 1968

StatusPublished

This text of 30 A.D.2d 546 (Simon v. Garrison) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Simon v. Garrison, 30 A.D.2d 546, 292 N.Y.S.2d 822, 1968 N.Y. App. Div. LEXIS 4040 (N.Y. Ct. App. 1968).

Pincite

Opinion

In a proceeding pursuant to article 78 of the CPLR inter alia to annul a determination denying petitioner’s application for retirement on an accident disability pension, petitioner appeals from a [547]*547judgment of the Supreme 'Court, Kings County, dated August 21, 1967, which granted respondents’ motion for reargument and thereupon dismissed the petition. Judgment reversed, on the law, with $10 costs and disbursements, and proceedings remitted to the Special Term for (1) a hearing limited to the issue of whether petitioner told respondents’ examining physicians that he had previously injured his back either in military service, or while playing ball, or in an automobile accident in 1957 and (2) further proceedings not inconsistent herewith. In our opinion, petitioner’s affidavit denying a back injury sustained while in military service or while playing ball raises an issue of fact which should be determined by Special Term at a hearing (CPLR 7804, subd. [h]; Matter of Schwab v. McElligott, 282 N. Y. 182). Christ, Acting P. J., Brennan, Babin, Benjamin and Munder, JJ., concur.

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In a proceeding pursuant to article 78 of the CPLR inter alia to annul a determination denying petitioner’s application for retirement on an accident disability pension, petitioner appeals from a [547]*547judgment of the Supreme 'Court, Kings County, dated August 21, 1967, which granted respondents’ motion for reargument and thereupon dismissed the petition. Judgment reversed, on the law, with $10 costs and disbursements, and proceedings remitted to the Special Term for (1) a hearing limited to the issue of whether petitioner told respondents’ examining physicians that he had previously injured his back either in military service, or while playing ball, or in an automobile accident in 1957 and (2) further proceedings not inconsistent herewith. In our opinion, petitioner’s affidavit denying a back injury sustained while in military service or while playing ball raises an issue of fact which should be determined by Special Term at a hearing (CPLR 7804, subd. [h]; Matter of Schwab v. McElligott, 282 N. Y. 182). Christ, Acting P. J., Brennan, Babin, Benjamin and Munder, JJ., concur.

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Bluebook (online)

30 A.D.2d 546, 292 N.Y.S.2d 822, 1968 N.Y. App. Div. LEXIS 4040, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simon-v-garrison-nyappdiv-1968.

Opinion

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