Opinion
March 12, 1993
Appeal from the Supreme Court, Erie County, Joslin, J.
Present — Callahan, J.P., Green, Balio, Lawton and Doerr, JJ.
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 A.D.2d 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 N.Y.2d 984, 985).