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LOPEZ v. AGUSTIN

2009-00554

69 A.D.3d 683 (2010)

891 N.Y.S.2d 654

2010 NY Slip Op 226

JESUS LOPEZ, Respondent, v. JUAN S. AGUSTIN et al., Defendants, and ISAAC V. GUTIERREZ, Appellant.

Appellate Division of the Supreme Court of New York, Second Department.

Decided January 12, 2010.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff, whose decedent was a passenger in a car that was struck by a car driven by the appellant, met his burden of establishing that the appellant's physical condition at the time of the accident was "in controversy," within the meaning of CPLR 3121 (a) (see Dillenbeck v Hess, 73 N.Y.2d 278, 286-289 [1989]; cf. Nappi v North Shore Univ. Hosp...

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