Gallo v. Cook

Dec 19, 1986
Versions:125 A.D.2d 980
510 N.Y.S.2d 374
1986 N.Y. App. Div. LEXIS 63173

— Judgment unanimously reversed, on the law and facts, with costs, and new trial granted. Memorandum: In this personal injury action, plaintiff Stella Gallo seeks money damages for injuries sustained as a result of a fall allegedly caused by the negligence of defendants. Her husband Joseph Gallo brings a derivative claim for the loss of her services and society. The jury awarded $20,000 to Stella Gallo on the personal injury action and found her 50% comparatively negligent. The jury denied any recovery to Joseph Gallo.

*981The record reveals that Stella Gallo suffered a severe fracture of her left hip, requiring surgery. It was necessary to "pin” the hip with an internal fixation device. She was hospitalized for 11 days, confined to her home for approximately one month and was unable to walk without assistance for almost a year. During that period she could not resume her normal activities, and Joseph Gallo, aided to some extent by his daughter, cared for her and performed many of the routine household tasks which previously had been performed by Mrs. Gallo. There was also testimony that the couple’s sexual relationship was adversely affected and that the parties were unable to engage in other activities which they had previously enjoyed.

There can be no doubt on this record that plaintiff husband suffered some loss, and the absence of an award of damages on his derivative suit is contrary to a fair interpretation of the evidence and inconsistent with the award of money damages on his wife’s personal injury claim (see, Gray v Brooklyn Hgts. R. R. Co., 175 NY 448; Maldonado v WABC Towing Corp., 121 AD2d 517). Since plaintiffs’ claims are integrally related, a new trial on all issues is appropriate (Hagler v Consolidated Edison Co., 99 AD2d 725). It is unnecessary to pass upon the other issues raised on this appeal. (Appeal from judgment of Supreme Court, Monroe County, Wagner, J. — negligence.) Present — Dillon, P. J., Callahan, Doerr, Denman and Schnepp, JJ.