| Milczarski v Walaszek |
| 2013 NY Slip Op 05390 [108 AD3d 1190] |
| July 19, 2013 |
| Appellate Division, Fourth Department |
| Christopher A. Milczarski, as Administrator of the Estate ofMark A. Milczarski, Deceased, Respondent, v Michael K. Walaszek et al.,Appellants, et al., Defendants. (Appeal No. 2.) |
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Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr.,A.J.), entered November 15, 2012. The order granted the motion of defendants MichaelK. Walaszek and K.W. Auto & Sales Inc., for leave to renew, and upon renewal, deniedtheir motion for partial summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on thelaw by granting in part the motion of defendants Michael K. Walaszek and K.W. Auto &Sales Inc. for partial summary judgment and dismissing the complaint against thosedefendants insofar as it seeks damages for plaintiff's pecuniary loss beyondreimbursement of funeral expenses and for any pecuniary loss sustained by distributeeCynthia Craft and as modified the order is affirmed without costs.
Memorandum: In this wrongful death action, Michael K. Walaszek and K.W. Auto& Sales Inc. (defendants) appeal from an order that granted their motion for leave torenew their motion for partial summary judgment seeking, inter alia, dismissal of thecomplaint insofar as it sought damages for decedent's family members for the pecuniaryloss of support, guidance and companionship of decedent, but that, upon renewal,adhered to its prior determination denying the motion. We reject defendants' contentionthat there are no issues of fact with respect to whether any of decedent's family memberssuffered pecuniary damages. Damages in a wrongful death action are limited to "fair andjust compensation for the pecuniary injuries resulting from the decedent's death to thepersons for whose benefit the action is brought" (EPTL 5-4.3 [a]). "Pecuniary loss" isdefined as "the economic value of the decedent to each distributee at the time decedentdied" (Huthmacher v Dunlop Tire Corp., 309 AD2d 1175, 1176 [2003]), andincludes loss of income and financial support, loss of household services, loss of parentalguidance, as well as funeral expenses and medical expenses incidental to death (seeGonzalez v New York City Hous. Auth., 77 NY2d 663, 667-669 [1991]; DeLong v County of Erie, 60 NY2d 296, 306-308 [1983]). Generally, because it isdifficult to provide direct evidence of wrongful death damages, the calculation ofpecuniary loss "is a matter resting squarely within the province of the jury" (Parilis vFeinstein, [*2]49 NY2d 984, 985 [1980]; seeAltmajer v Morley, 274 AD2d 364, 365 [2000]). On this record, we conclude thatthere are issues of fact with respect to whether plaintiff, as decedent's brother, sufferedpecuniary loss in the form of funeral expenses and whether decedent's brother Matthewsuffered pecuniary loss given the evidence of their longstanding close and interdependentrelationship. We agree with defendants, however, that they are entitled to summaryjudgment dismissing the complaint insofar as it seeks damages for plaintiff's pecuniaryloss beyond reimbursement for funeral expenses and for any pecuniary loss sustained bydecedent's sister, Cynthia Craft. We therefore modify the order accordingly.Present—Centra, J.P., Fahey, Carni and Sconiers, JJ.