Lopez v. Gomez

• Decision Date: 22 May 2003
• Citation: 305 A.D.2d 292,761 N.Y.S.2d 601
• Parties: ISIDRA LOPEZ et al., Appellants-Respondents,<BR>v.<BR>JUAN A. GOMEZ et al., Defendants,<BR>AHMAD BAKHTIAR, Respondent, and<BR>MAITRA ASSOCIATES, INC., Respondent-Appellant.<BR>ISIDRA LOPEZ et al., Appellants,<BR>v.<BR>JUAN A. GOMEZ et al., Defendants, and<BR>AHMAD BAKHTIAR et al., Respondents.
• Court: New York Supreme Court — Appellate Division

305 A.D.2d 292

761 N.Y.S.2d 601

ISIDRA LOPEZ et al., Appellants-Respondents,

v.JUAN A. GOMEZ et al., Defendants,

AHMAD BAKHTIAR, Respondent, and

MAITRA ASSOCIATES, INC., Respondent-Appellant.

ISIDRA LOPEZ et al., Appellants,

v.JUAN A. GOMEZ et al., Defendants, andAHMAD BAKHTIAR et al., Respondents.

Decided May 22, 2003.

Concur — Nardelli, J.P., Sullivan, Rosenberger, Wallach and Gonzalez, JJ.

The action arises out of a motor vehicle accident involving two adults, who were not physically injured, their seven-year-old son, who was injured, and their 15-day-old son, who sustained a skull fracture and died some two hours after the accident. Defendant Maitra does not challenge the jury finding that the accident was caused by the negligence of its employee. Various errors require a new trial on various damage issues. First, the cause of action for the infant's wrongful death was incorrectly dismissed as a matter of law at the close of evidence on the ground that there was no evidence of pecuniary loss. But there was no need for any such evidence. "[I]n any wrongful death action, especially one involving a child of tender years, the absence of dollars and cents proof of pecuniary loss does not relegate the distributees to recovery of nominal damages only. * * * Rather, since it is often impossible to furnish direct evidence of pecuniary injury, calculation of pecuniary loss is a matter resting squarely within the province of the jury." (Parilis v Feinstein, 49 NY2d 984, 985 [1980].) Second, the cause of action for the infant's pain and suffering during the two hours that he survived after the accident was incorrectly dismissed as a matter of law at the close of evidence on the ground that there was no evidence that the infant experienced any pain. But there was such evidence, namely, the testimony of the father, the mother and the person who carried the baby into the hospital, who described how the baby was "changing colors" and "trying to breathe," "his forehead was becoming swollen," "his eyes were different" and "he was full of blood." Nor does the requirement that there be some level of cognitive awareness preclude a newborn from recovering damages for pain and suffering as a matter of law (see Cepeda v New York City Health & Hosps. Corp., 303 AD2d 173 [2003]). Third, while the $1.5 million awarded for plaintiff child's past pain and suffering does not deviate from what is reasonable compensation for his comminuted fracture of the femur and deep facial...