Stolarski v. Family Serv. of Westchester Inc.

• Decision Date: 21 September 2011
• Citation: 2011 N.Y. Slip Op. 21330,930 N.Y.S.2d 824,33 Misc.3d 607
• Parties: Arlene STOLARSKI, as Administratrix of the Estate of Erin Stolarski, Deceased, and John Stolarski, Plaintiff,v.FAMILY SERVICES OF WESTCHESTER, INC., Defendant.
• Court: New York Supreme Court

33 Misc.3d 607
930 N.Y.S.2d 824
2011 N.Y. Slip Op. 21330

Arlene STOLARSKI, as Administratrix of the Estate of Erin Stolarski, Deceased, and John Stolarski, Plaintiff,
v.
FAMILY SERVICES OF WESTCHESTER, INC., Defendant.

Supreme Court, Westchester County, New York.

Sept. 21, 2011.

[930 N.Y.S.2d 825]

Law Offices of Anthony J. Pirrotti, Esq. Ardsley, Attorney for Plaintiffs.Lewis Brisbois Bisgaard & Smith, LLP, New York City, Attorney for Defendant Family Services of Westchester.WILLIAM J. GIACOMO, J.

[33 Misc.3d 608] The facts of this case are not in dispute. On October 15, 2005, the decedent Erin Stolarski, depressed over a break up with her boyfriend, attempted suicide by ingesting 22 pills of various types of medications. Erin was then admitted to Greenwich Hospital. According to the Greenwich Hospital records, Erin presented with depression due to the breakup with her boyfriend and suffered from depression, suicidal thoughts, and suicide ideation. The hospital records also indicate that Erin told a hospital employee that she could harm herself again and that she had been depressed for the past two weeks.

As part of her discharge plan, on October 19, 2005, Erin met with a member of defendant Family Services of Westchester, Inc. (“FSW”), telling the social worker that she “cannot live without [her boyfriend].” The social worker noted that Erin was in a “depressed mood” and had a “tearful affect.” On October 26, 2005, Erin again met with an FSW social worker. The social worker's records indicate that Erin's separation from her boyfriend “continues to trigger depressed mood and feelings of hopelessness.”

Tragically, on October 28, 2005, Erin returned to the apartment she had shared with her boyfriend, accessed his firearm and took her own life by shooting herself in the temple. Plaintiffs, Erin's parents, bring this wrongful death action seeking recovery for the pain and suffering Erin experienced between the time she was released from Greenwich Hospital after her first suicide attempt and the time Erin took her own life approximately two weeks later. Plaintiffs argue that Erin's death was caused by defendant Family Services of Westchester, Inc. failure to properly treat Erin.

FSW now moves via a motion in limine, to dismiss the complaint on the ground that it fails to state a cause of action. FSW argues that the damages plaintiffs seek to recover for pain and suffering are not recoverable under New York law. Plaintiff disagrees.

The Court has received and reviewed briefs with regard to the issues raised and, after oral argument before the Court, the Court decides the motion to dismiss the complaint for failure to state a cause of action as follows.

Timing of FSW's Motion to Dismiss

[33 Misc.3d 609] At the outset, the Court notes that during oral argument, plaintiffs argued that this motion should not be entertained because it was brought on the eve of trial.

Contrary to plaintiffs' contentions, CPLR 3211(e) provides that a motion to dismiss pursuant to CPLR 3211(a)(2), failure to state a cause of action, “may be made at any subsequent time or in later pleadings, if one is permitted ...” Therefore, FSW's motion is properly made.

Failure to State a Cause of Action

In a wrongful death action, the plaintiffs have the threshold burden of proving that decedent was conscious and in pain for at least some period of time following the incident which caused her death in order to justify an award of damages for pain and...