109 A.D.2d 1104 | N.Y. App. Div. | 1985
— Order unanimously reversed, on the law, with costs, and motion denied. Memorandum: A cause of action for loss of services and society of a spouse is predicated upon physical or mental injury or incapacity of that spouse (see, Millington v Southeastern Elevator Co., 22 NY2d 498, 504; 15 NY Jur, Domestic Relations, § 302 [rev ed]; Prosser and Keeton, Torts § 125, at 932 [5th ed 1984]; Restatement [Second] of Torts § 693 [1977]). In this legal malpractice action there is no allegation of physical or mental injury or incapacity inflicted upon either spouse; hence, Special Term should not have granted permission to amend the complaint to add the cause of action for loss of consortium. (Appeal from an order of Supreme Court, Monroe County, Bergin, J. — amend complaint.) Present — Dillon, P. J., Denman, Boomer and O’Donnell, JJ.