Wachowicz v. Czarnecki

191 A.D.2d 994, 595 N.Y.S.2d 271

Opinion

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied defendant’s motion for summary judgment in this action to recover damages stemming from the death of 13-year-old Michael Wachowicz. Defendant has failed to establish, as a matter of law, that death was instantaneous or that decedent was incapable of experiencing pain from the time of the accident at 7:43 p.m. until he was officially pronounced dead at 8:15 p.m., as reflected in the death certificate (see, Jehle v Hertz Corp., 174 AD2d 812).

Whether plaintiffs are entitled to recover damages for the wrongful death of decedent cannot be determined as a matter of law. Determination thereof is a matter resting within the jury’s province (see, Parilis v Feinstein, 49 NY2d 984, 985). (Appeal from Order of Supreme Court, Erie County, Joslin, J. —Summary Judgment.) Present — Callahan, J. P., Green, Balio, Lawton and Doerr, JJ.