| McKenna v Reale |
| 2016 NY Slip Op 02501 [137 AD3d 1533] |
| March 31, 2016 |
| Appellate Division, Third Department |
[*1]
| Judith A. McKenna, Individually and as Administratorof the Estate of James J. McKenna Jr., Deceased, Appellant, v John T. Reale,Respondent. |
Melley Platania, PLLC, Rhinebeck (Steven M. Melley of counsel), for appellant.
Burke, Scolamiero, Mortati & Hurd, LLP, Hudson (Judith B. Aumand ofcounsel), for respondent.
Lynch, J. Appeal from an order of the Supreme Court (Zwack, J.), entered August21, 2015 in Rensselaer County, which granted defendant's motion for summary judgmentdismissing the complaint.
On April 30, 2009, James J. McKenna Jr. (hereinafter decedent), who was riding abicycle, was struck and killed by defendant, who was driving his vehicle southbound onRoute 82 in the Town of Livingston, Columbia County. The collision occurred just pastthe intersection of Routes 82 and 9 as decedent, also traveling southbound, crossedRoute 82 from the east to the west shoulder in front of defendant's vehicle. Plaintiff, asadministrator of decedent's estate, commenced this action for wrongful death andconscious pain and suffering. Following completion of discovery, Supreme Courtgranted defendant's motion for summary judgment dismissing the complaint. Plaintiffnow appeals.
Generally, to succeed on a motion for summary judgment, a defendant must submitsufficient admissible evidence to establish the absence of any material issues of fact andto warrant judgment as a matter of law in his or her favor (see CPLR 3212;Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). To determinewhether there are any factual issues, we [*2]view theevidence in a light most favorable to the nonmoving party and give that party the benefitof every favorable inference (see Boston v Dunham, 274 AD2d 708, 709 [2000]).In this wrongful death action, "admittedly slight and clearly circumstantial" evidence maybe sufficient to raise a triable issue of fact (Budik v CSX Transp., Inc., 88 AD3d 1097, 1098 [2011][internal quotation marks and citation omitted]; see Noseworthy v City of NewYork, 298 NY 76, 80-81 [1948]).
Assuming that decedent was negligent, because there can be more than oneproximate cause of an accident (see O'Brien v Couch, 124 AD3d 975, 977 [2015]),defendant's obligation on this motion was to establish his "freedom from comparativefault as a matter of law" (Palmeri v Erricola, 122 AD3d 697, 698 [2014]; seeAyotte v Gervasio, 81 NY2d 1062, 1063 [1993]). Drivers have a duty to exercisereasonable care under the circumstances presented and to see and respond to theconditions in the roadway within their view (see Rivera v Fritts, 136 AD3d 1249, 1251 [2016]; Smith v Allen, 124 AD3d1128, 1130 [2015]; see also PJI 2:77). Here, defendant relies primarily on hisown deposition testimony and the police report wherein the investigating officerconcluded that "the primary causative factor of th[e] collision was [decedent's] failure. . . to yield the right of way" to defendant's truck. Defendant testified thatthere was no traffic as he proceeded through the intersection and that he was drivingbelow the speed limit at a constant speed. He acknowledged that, at this point, he lookedtowards the gas station to the right, and then looked down at his gas gauge. When he"looked back up at the road," he saw decedent for the first time "[r]ight in front of[him]." Defendant explained that he had "tunnel vision" and was uncertain whether hesaw the bike in motion moving across the road. He braked and attempted to steer left buthit decedent, who rolled across the hood and hit the windshield before landing behind thetruck. In our view, from defendant's own testimony, a jury could reasonably concludethat defendant failed to see what there was to be seen through the proper use of hissenses. Accordingly, we disagree with Supreme Court's conclusion that defendant methis prima facie burden as to the cause of decedent's death (see Palmeri v Erricola,122 AD3d at 698; Boston v Dunham, 274 AD2d at 710).
Next, Supreme Court properly determined that defendant established prima facieentitlement to summary judgment dismissing plaintiff's claim for conscious pain andsuffering from the moment of injury to the moment of death. To establish such a claim,the evidence must support a finding that decedent experienced "some level of awareness"before dying (McDougald v Garber, 73 NY2d 246, 255 [1989] [internalquotation marks omitted]; see Martin v Reedy, 194 AD2d 255, 259 [1994]).Accordingly, on this motion, defendant's initial burden was to establish that decedent didnot endure conscious pain and suffering (see Houston v McNeilus Truck & Mfg., Inc., 115 AD3d1185, 1186 [2014]). Dismissal of a claim for conscious pain and suffering is notwarranted in the absence of proof that decedent was unconscious immediately after theaccident (see id.; Barron v Terry, 268 AD2d 760, 761 [2000]). Here, theparamedics reported that decedent was dead upon their arrival, the coroner concludedthat decedent's death was instantaneous from multiple head injuries and defendanttestified that, as soon as he approached after the accident, he observed that decedent wasunconscious, not moving and did not appear to be breathing. In our view, this evidenceof decedent's condition immediately following the accident, coupled with the coroner'sand paramedic's reports, was sufficient to demonstrate prima facie entitlement tosummary judgment dismissing plaintiff's cause of action for conscious pain and sufferingfor the physical injuries sustained. That defendant placed a blanket over decedent doesnot, as plaintiff maintains, present a question of fact as to whether decedent wasconscious (see Boston v Dunham, 274 AD2d at 711).
We reach a different conclusion with respect to plaintiff's claim for preimpact terror,which pertains to the emotional pain and suffering that decedent may have enduredbetween the [*3]moment he observed defendant's vehicleand the moment of impact (see PJI 2:320). Defendant testified that he sawdecedent immediately prior to impact, that decedent was facing "[t]owards [his] right"and that he could not recall whether decedent looked in his direction. This testimonydoes not establish, as a matter of law, that decedent was unaware of the impendingcollision. Moreover, operative facts that are solely within the movant's knowledge shouldnot form the basis for a motion for summary judgment (see Budik v CSX Transp.,Inc., 88 AD3d at 1098). In our view, a jury should be permitted to determine whetherdecedent was aware of impending serious physical injury or death, even if the duration ofsuch comprehension was limited (see Boston v Dunham, 274 AD2d at 711;Lang v Bouju, 245 AD2d 1000, 1001 [1997]).
Finally, turning to plaintiff's claim for wrongful death, recovery may be had for "fairand just compensation for the pecuniary injuries resulting from [a] decedent's death tothe persons for whose benefit the action is brought" (EPTL 5-4.3 [a]; see EPTL5-4.1). "[T]he essence of the cause of action for wrongful death in this [s]tate is that theplaintiff's reasonable expectancy of future assistance or support by the decedent wasfrustrated by the decedent's death" (Gonzalez v New York City Hous. Auth., 77NY2d 663, 668 [1991]). Thus, a plaintiff may recover for " '[l]oss of support,voluntary assistance and possible inheritance, as well as medical and funeral expensesincidental to death' " (id., quoting Parilis v Feinstein, 49 NY2d984, 985 [1980]; see EPTL 5-4.3 [a]). Because it is difficult to establishpecuniary loss, damages in a wrongful death case should typically be for a jury tocalculate (see Milczarski vWalaszek, 108 AD3d 1190, 1190 [2013]). Here, plaintiff testified that her sondid not work much and did not own property, but that, during decedent's lifetime, hewould give her birthday and Christmas gifts, occasionally gave her money and, beforeshe moved to an assisted living facility, would mow her grass. Plaintiff also testified thatshe contributed money towards her son's funeral expenses.[FN*] Based on the limited record, we findthat defendant did not demonstrate the absence of any material questions with regard toplaintiff's pecuniary loss and that Supreme Court should not have dismissed the wrongfuldeath claim (see id. at 1190-1191; Singer v Friedman, 220 AD2d 574,577 [1995]).
Peters, P.J., McCarthy and Egan Jr., JJ., concur. Ordered that the order is modified,on the law, without costs, by reversing so much thereof as granted defendant's motion forsummary judgment dismissing the causes of action for preimpact terror and wrongfuldeath; motion denied to said extent; and, as so modified, affirmed.
Footnote *:On this appeal, plaintiffasserts, without record support, that Columbia County has a lien for funeral expenses.