Loehner v. Simons

657 N.Y.S.2d 447 | N.Y. App. Div. | 1997

In an action to recover damages for wrongful death and pain and suffering, the defendants Stephen Simons, M.D., and East Nassau Medical Group appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Suffolk County (Oshrin, J.), dated June 14, 1996, as, upon a jury verdict, is in favor of the plaintiff and against them in the principal sums of $300,000 for conscious pain and suffering and $300,000 for wrongful death.

Ordered that the judgment is modified, on the law, by deleting the sum of $50,000 from the award for wrongful death, representing the share of the adult son of the decedent; as so modified, the judgment is affirmed insofar as appealed from, with costs to the plaintiff.

In a wrongful death action, an award of damages is limited to the "pecuniary injuries resulting from the decedent’s death to the persons for whose benefit the action is brought” (EPTL 5-4.3 [a]; see, Gonzalez v New York City Hous. Auth., 77 NY2d 663). Further, while financially independent adults may recover in wrongful death actions (see, Gonzalez v New York City Hous. Auth., supra; Tilley v Hudson Riv. R. R. Co., 29 NY 252), on the facts of this case, that part of the wrongful death award that was made on behalf of the decedent’s adult son in the amount of $50,000 must be vacated because there was no evidence as to any economic injury to the son caused by his mother’s death.

The appellants’ remaining contentions lack merit. Bracken, J. P., Sullivan, Santucci and Altman, JJ., concur.