Amble v. Tewari

• Decision Date: 03 July 1985
• Parties: John AMBLE, as Administrator, etc. and John Amble, Individually v. Phyllis TEWARI, etc. et al.
• Court: New York Supreme Court

Page 964

491 N.Y.S.2d 964

128 Misc.2d 990

John AMBLE, as Administrator, etc. and John Amble, Individually v. Phyllis TEWARI, etc. et al.

Supreme Court, Special Term,

Queens County, Part 1.

July 3, 1985.

Julien & Schlesinger, P.C., New York City, for plaintiff.

Richard Joannides, New York City, for defendant.

MEMORANDUM

Eugene P. BAMBRICK, Justice.

Plaintiffs' motion is for an order striking the affirmative defense in paragraph 8 of the answer. Defendants' cross motion is for an order (a) limiting the recovery of plaintiffs, if any, pursuant to paragraph 13 of the complaint to the value of Sandra Amble's services as a housewife in the household she maintained with her husband, plaintiff John Amble; (b) precluding the plaintiffs from giving evidence at the trial of the items contained in defendants' demand for a bill of particulars; or (c) granting such other further or different relief as to the Court seems just and proper under the circumstances.

Defendants' request for an order of preclusion, item (b), is moot, since plaintiffs have now served a bill of particulars.

In the underlying action, plaintiffs set forth two causes of action against defendants, based upon a fire that allegedly occurred in the defendants' premises. The first cause of action is for injuries and conscious pain allegedly sustained by Sandra Amble because of the fire. The second cause of action is for the wrongful death of Sandra Amble allegedly as a result of the fire.

In the cause of action for wrongful death, plaintiffs set forth at paragraph 13:

"By reason of the foregoing, Plaintiff JOHN AMBLE, and the heirs and distributees whom he represents, were caused to sustain loss of society, services and companionship; loss of income and inheritance; and were caused to incur medical and funeral expenses."

It is to this paragraph of the complaint that defendants take exception. As noted hereinbefore in their cross motion defendan request an order limiting the recovery of plaintiffs to the value of Sandra Amble's services as a housewife in the household she maintained with her husband, plaintiff John Amble. In their papers defendants also assert that plaintiffs' claim for "loss of society, services and companionship" of plaintiffs' decedent is not cognizable under section 5-4.3 of the Estates, Powers and Trusts Law, and should be stricken.

Defendants in their answer set forth at paragraph 8:

"In so far as the complaint purports to or can be interpreted as setting forth a cause of action for the loss of services of plaintiff's decedent, such is not a cause of action cognizable at law."

It is to this paragraph of the answer that plaintiffs take exception. Plaintiffs assert that "loss of services" is recoverable in an action for wrongful death.

Section 5-4.3 of the Estates, Powers and Trusts Law defines what damages are recoverable in a wrongful death action as follows:

"(a) The damages awarded to the plaintiff may be such sum as the jury or, where issues of fact are tried without a jury, the court or referee deem to be fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought. In every such action, in addition to any other lawful element of recoverable damages, the reasonable expenses of medical aid, nursing and attention incident to the injury causing death and the reasonable funeral expenses of the decedent paid by the distributees, or for the payment of which any distributee is responsible, shall also be proper element of damage. Interest upon the principal sum recovered by the plaintiff from the date of the decedent's death shall be added to and be part of the total sum awarded." (emphasis added)

"(b) Where the death of the decedent occurs on or after September first, nineteen hundred eighty-two, in addition to damages and expenses recoverable under paragraph (a) above, punitive damages may be awarded if such damages would have been recoverable had the decedent survived."

In Liff v. Schildkrout, 49 N.Y.2d 622, 427 N.Y.S.2d 746, 404 N.E.2d 1288, the Court of Appeals held that the qualifying phrase "pecuniary...