| Kevra v Vladagin |
| 2012 NY Slip Op 04718 [96 AD3d 805] |
| June 13, 2012 |
| Appellate Division, Second Department |
| Dina Kevra et al., Respondents, v Mikhail Vladagin et al.,Appellants. |
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Mohen & Associates, LLP, Locust Valley, N.Y. (Thomas P. Mohen of counsel), forrespondents.
In an action, inter alia, to recover damages for wrongful death, the defendants appeal from somuch of an order of the Supreme Court, Westchester County (Tolbert, J.), entered February 16,2012, as denied that branch of their motion which was for summary judgment dismissing thesecond cause of action to recover damages for conscious pain and suffering.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendants' motion which was for summary judgment dismissing the second causeof action is granted.
The plaintiffs' decedent died as a result of a one-car accident wherein the vehicle in which hewas traveling flipped onto its side and its roof then struck a tree. The accident took place shortlyafter 8 p.m. on September 7, 2008, and, according to a New York State Police Incident Report,"the Assistant Rockland County Medical Examiner confirmed the official time of death as [9:20p.m.]." At the time of the impact, the decedent was seated in the rear passenger compartmentbehind the driver. The two other occupants of the vehicle, the driver and the front seat passenger,survived the crash. In the order appealed from, the Supreme Court, inter alia, denied that branchof the defendant's motion which was for summary judgment dismissing the second cause ofaction to recover damages for conscious pain and suffering.
On a motion for summary judgment, the defendants bear the initial burden of showing thatthe decedent did not suffer conscious pain and suffering (see Phiri v Joseph, 32 AD3d 922 [2006]; Schild v Kingsley, 5 AD3d 103,104 [2004]; Massey v New York City Hous. Auth., 230 AD2d 601, 602 [1996]). Here,the defendants satisfied their initial burden. In particular, they submitted evidence that thedecedent did not make any sound or movement, and that he appeared not to be breathing, duringthe approximately one hour in between the occurrence of the accident and the official time ofdeath.
In opposition, the plaintiffs failed to raise a triable issue of fact. "Without legally sufficientproof of consciousness following an accident, a claim for conscious pain and suffering must bedismissed" (Cummins v County of Onondaga, 84 NY2d 322, 325 [1994]). Mereconjecture, surmise, or speculation is insufficient to sustain a cause of action to recover damagesfor conscious pain and suffering (id.). Furthermore, there was no evidence that thedecedent experienced "pre[*2]impact terror" (see Anderson vRowe, 73 AD2d 1030, 1031 [1980]; Carlson v Porter, 53 AD3d 1129 [2008]; cf. Lang v Bouju,245 AD2d 1000, 1001 [1997]). Any finding that the decedent perceived grave injury or death, soas to justify making an award for "preimpact terror," would be based on impermissiblespeculation (Phiri v Joseph, 32 AD3d at 923).
Consequently, the Supreme Court should have granted that branch of the defendants' motionwhich was for summary judgment dismissing the second cause of action to recover damages forconscious pain and suffering. Dillon, J.P., Eng, Austin and Sgroi, JJ., concur.