54 A.D.2d 920 | N.Y. App. Div. | 1976
In an action to recover damages for wrongful death and conscious pain and suffering, in which the latter cause of action was dismissed by the trial court at the close of plaintiff’s case, plaintiff appeals, on the ground of inadequacy, from a judgment of the Supreme Court, Richmond County, entered August 29, 1975, which is in his favor on the cause of action for wrongful death, upon a jury verdict in the amount of $10,000. Judgment reversed, on the law, and new trial granted as to the cause of action for wrongful death, upon the issue of damages only, with costs to abide the event, unless, within 30 days after entry of the order to be made hereon, defendants shall serve and file in the office of the clerk of the trial court a written stipulation consenting to increase the verdict from $10,000 to $25,000, and to the entry of an amended judgment accordingly, in which event the judgment, as so increased and amended, is affirmed, without costs or disbursements. The findings of fact as to liability are affirmed. The plaintiff recognizes that in Amerman v Lizza & Sons (45 AD2d 996, 998) this court, under the rule of stare decisis, held that it could not allow a recovery under the terms of the statute (EPTL 5-4.3) for grief, loss of society or loss of companionship, but argues that we should change our views. If the law in this regard is to be changed it must be by an amendment of the statute, or by its reinterpretation by the Court of Appeals (see Sideman v Guttman, 38 AD2d 420). The plaintiff also contends that, under the existing statute, there may be a recovery for past moneys expended in the rearing of the decedent. Although adoption of such a view has been suggested (51 Cornell L Q 425), and has been adopted as sound principle in Currie v Fiting (375 Mich 440), such a basic change in the interpretation given to the Estates, Powers and Trusts Law and its predecessor statute is not for this court to make. In this case the funeral bill was $3,277.61, and the total amount of money expended by plaintiff, including the funeral bill, totaled in the neighborhood of $6,000. Considering that fact, and the other relevant testimony in the record, we have come to the conclusion that, despite our rejection of the plaintiff’s request that we reinterpret the law, the verdict of $10,000 is shockingly inadequate. Accordingly, the judgment appealed from should be reversed and a new trial granted as to damages only, unless the defendants stipulate to increase the verdict to $25,000 in accordance herewith. Martuscello, Acting P. J., Latham, Margett and Shapiro, JJ., concur; Cohalan, J., dissents and votes to affirm the judgment, with the following memorandum: This case presents a legal situation of the most exquisite irony, because, although justice has been done, the seeming inadequacy of the jury verdict presents a glaring anomaly in this age of tremendous money recoveries. The trial court charged, in part and without exception: "In an action for wrongful death, the measure of damages is the amount of money you the jury deem to be a