| Johnson v Richmond Univ. Med. Ctr. |
| 2012 NY Slip Op 09033 [101 AD3d 1087] |
| December 26, 2012 |
| Appellate Division, Second Department |
| David Johnson, Respondent, v Richmond UniversityMedical Center et al., Defendants, and Eli Serur et al., Appellants. |
—[*1] Kramer, Dillof, Livingston & Moore, New York, N.Y. (Matthew Gaier and John Beatty ofcounsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice and wrongful death, thedefendants Eli Serur and Avijit D. Mukerji appeal, as limited by their brief, from so much of anorder of the Supreme Court, Richmond County (Fusco, J.), dated July 22, 2011, as denied theirmotion for summary judgment dismissing the cause of action alleging wrongful death insofar asasserted against them.
Ordered that the order is modified, on the law, by deleting the provision thereof denyingthose branches of the appellants' motion which were for summary judgment dismissing so muchof the cause of action alleging wrongful death as sought to recover damages against theappellants for funeral expenses on behalf of all of the distributees and for pecuniary loss onbehalf of David Johnson and Michael Johnson, and substituting therefor a provision grantingthose branches of the motion; as so modified, the order is affirmed insofar as appealed from, withcosts to the appellants.
Anita Johnson (hereinafter Anita) allegedly died from complications which arose duringsurgery performed by the defendants Eli Serur and Avijit D. Mukerji (hereinafter together theappellants). Anita's brother, David Johnson, as administrator of her estate, commenced thisaction, inter alia, to recover damages for wrongful death for pecuniary loss on behalf of Anita'sfour intestate distributees: her three living siblings, David Johnson (in his individual capacity),Carrie Johnson, and Laurie Johnson Kozar, and Anita's nephew Michael Johnson, the son of abrother who predeceased her (hereinafter David, Carrie, Laurie, and Michael, respectively). Thewrongful death cause of action also seeks to recover damages for funeral expenses allegedlyincurred. In the order appealed from, the Supreme Court, among other things, denied theappellants' motion for summary judgment dismissing the cause of action alleging wrongful deathinsofar as asserted against them.
In an action to recover damages for wrongful death, the measure of damages includes "fairand just compensation for the pecuniary injuries resulting from the decedent's death to the [*2]persons for whose benefit the action is brought" (EPTL 5-4.3 [a])."[T]he essence of the cause of action for wrongful death in this State is that the plaintiff'sreasonable expectancy of future assistance or support by the decedent was frustrated by thedecedent's death" (Gonzalez v New York City Hous. Auth., 77 NY2d 663, 668 [1991])."Loss of support, voluntary assistance and possible inheritance, as well as medical and funeralexpenses incidental to death, are injuries for which damages may be recovered" (id. at668).
Here, the appellants met their prima facie burden of establishing their entitlement tojudgment as a matter of law dismissing so much of the cause of action alleging wrongful death assought to recover damages against them for funeral expenses on behalf of all of the distributees,and for pecuniary loss on behalf of David and Michael (see Zuckerman v City of NewYork, 49 NY2d 557, 560 [1980]). The evidence submitted by the appellants established thatDavid and Michael suffered no pecuniary loss resulting from the alleged wrongful death of Anita(see Biggs v Mary Immaculate Hosp., 303 AD2d 702, 703 [2003]). The appellants alsoestablished, prima facie, that Anita's distributees incurred no funeral expenses, since they werefully reimbursed for those costs by a family friend. In opposition to these showings, the plaintifffailed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d at560). Accordingly, the Supreme Court should have granted those branches of the appellants'motion which were for summary judgment dismissing so much of the cause of action allegingwrongful death as sought to recover damages against them for funeral expenses on behalf of allof the distributees, and for pecuniary loss on behalf of David and Michael.
However, the appellants failed to demonstrate, prima facie, their entitlement to judgment as amatter of law dismissing so much of the cause of action alleging wrongful death as sought torecover damages against them for pecuniary loss on behalf of Anita's sisters, Laurie and Carrie(see id.; Gonzalez v New York City Hous. Auth., 77 NY2d at 667). Construingthe evidence submitted by the appellants in the light most favorable to the nonmoving party (see Pearson v Dix McBride, LLC, 63AD3d 895 [2009]), there was evidence that, among other things, Anita regularly gave Lauriemoney for various purposes and took care of Laurie's house while she was out of the country onactive duty in the military, and that Anita provided baby sitting services for Carrie's children(see Gonzalez v New York City Hous. Auth., 77 NY2d at 667). Since the appellantsfailed to meet their prima facie burden with respect to this branch of the motion, denial of thisbranch of the motion is required without regard to the sufficiency of the papers submitted inopposition thereto (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]). Dillon, J.P., Austin, Sgroi and Cohen, JJ., concur.