| Leger v Chasky |
| 2008 NY Slip Op 07630 [55 AD3d 564] |
| October 7, 2008 |
| Appellate Division, Second Department |
| Michelle Rivers Leger, Appellant, v Dean Chasky et al.,Respondents. |
—[*1] Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro, Jr.,and Patricia D'Alvia of counsel), for respondents.
In an action to recover damages for medical malpractice and wrongful death, the plaintiff appealsfrom a judgment of the Supreme Court, Kings County (Levine, J.), entered March 27, 2007, which,upon a jury verdict awarding her damages in the sum of $900,000 for the pecuniary loss sustained bythe decedent's infant child through the age of 18 and, upon an order of the same court dated February28, 2006, granting the defendants' motion pursuant to CPLR 4404 to set aside and reduce the juryverdict as to damages as against the weight of the evidence and excessive, is in favor of her and againstthe defendants in the principal sum of only $23,244.
Ordered that the judgment is reversed, on the law, the order dated February 28, 2006 is vacated,and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of damages,with costs to abide the event.
At trial, the former wife of the decedent testified that the decedent maintained a very goodrelationship with their daughter (hereinafter the infant distributee), who was 12 years old at the time ofthe decedent's death. In describing the relationship, the former wife testified that the decedent would,among other things, telephone the infant distributee every other day, see her two or three times a month,spend time with her during the Christmas holiday, attend school functions, and at times drive her toschool and take her to the doctor. In addition, pursuant to court order, the decedent made bimonthlychild support payments. Based upon this testimony, the Supreme Court erred in denying the plaintiff'srequest to instruct the jury that loss of parental guidance was a component of [*2]pecuniary damages and to submit a verdict sheet asking the jury tocompute pecuniary loss from the date of death until the infant distributee reached the age of 21.
"In a wrongful death action, an award of damages is limited to the fair and just compensation forthe pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action isbrought" (Plotkin v New York City Health & Hosps. Corp., 221 AD2d 425, 426 [1995];see EPTL 5-4.3 [a]). The loss of parental nurture and care, as well as physical, moral, andintellectual training, is a proper component of pecuniary injury and may be considered by the jury indetermining damages (see Zygmunt v Berkowitz, 301 AD2d 593, 594 [2003]; Plotkin vNew York City Health & Hosps. Corp., 221 AD2d 425 [1995]). Contrary to the SupremeCourt's determination here, the evidence presented was sufficient to support the charge of parentalguidance (see Zygmunt v Berkowitz, 301 AD2d at 594). Moreover, damages may becomputed for pecuniary loss to an infant until he or she reaches the age of 21 (see Odom vByrne, 104 AD2d 863, 864-865 [1984]). Accordingly, we remit the matter to the Supreme Court,Kings County, for a new trial on the issue of damages.
The plaintiff further contends that the trial court erred in precluding the testimony of the infantdistributee. In light of our determination regarding the propriety of the charge, we need not reach thiscontention. Upon remittal, however, there is no basis for precluding the infant distributee's testimony atthe new trial on damages as the defendants can no longer claim either surprise or lack of an opportunityto prepare a responsive defense (see Kavanaugh v Kuchner, 243 AD2d 445, 446 [1997];Skowronski v F & J Meat Packers, 210 AD2d 392, 393 [1994]).
In light of our determination that errors in the charge and verdict sheet require a new trial on theissue of damages, we need not reach the plaintiff's remaining contention that the Supreme Court erred insetting aside the damages verdict as excessive and against the weight of the evidence. We note,however, that the reduced judgment entered upon the court's granting of the defendants' motion to setaside the damages verdict erroneously failed to take into account the parental guidance component ofpecuniary loss. Further, it was procedurally improper for the Supreme Court to enter a judgmentreducing the award of damages without granting a new trial on that issue unless the plaintiff stipulated toreduce the verdict (see Zukowski vGokhberg, 31 AD3d 633, 634 [2006]; McNeil v MCST Preferred Transp. Co., 301AD2d 579, 580 [2003]; Tri-State Aluminum Prods. v Paramount Macaroni Mfg. Co., 247AD2d 606, 607 [1998]). Spolzino, J.P., Florio, Miller and Carni, JJ., concur.