Weisberg v. Layne-New York Co., Inc.

• Decision Date: 06 July 1987
• Docket Number: LAYNE-NEW
• Citation: 517 N.Y.S.2d 304,132 A.D.2d 550
• Parties: Eugene S. WEISBERG, etc., Respondent, v.YORK CO., INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 304

517 N.Y.S.2d 304

132 A.D.2d 550

Eugene S. WEISBERG, etc., Respondent, v. LAYNE-NEW YORK CO., INC., Appellant.

Supreme Court, Appellate Division Second Department.

July 6, 1987.

Mulholland, Minion & Roe, Williston Park (Glenn J. Matera), for appellant.

Fuchsberg & Fuchsberg, New York City (Martin Diennor, of counsel), for respondent.

Before MOLLEN, P.J., and BROWN, RUBIN and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for wrongful death, the defendant appeals from an order of the Supreme Court, Nassau County (Levitt, J.), dated May 16, 1986, which determined that the laws of the State of New Hampshire relating to recovery for wrongful death are applicable to this action.

ORDERED that the order is affirmed, with costs.

In December 1983 Keith Weisberg, a 19-year-old student at New England College in Henniker, New Hampshire, was killed when the automobile he was driving collided with a vehicle operated by the defendant's employee in Hopkinton, New Hampshire. At the time of the accident, the decedent was a New York domiciliary residing in the State of New Hampshire. He possessed a New York State driver's license and was operating a vehicle owned by his father, also a New York domiciliary, who is also the administrator of the estate and the plaintiff herein.

The defendant is a New York corporation with its principal place of business in the State of New Jersey, which conducts business on apparently a limited basis, in New Hampshire. The offending truck was owned by the corporation which, for vehicular registration purposes, was located in Hillsboro, New Hampshire. The driver of the vehicle was a New Hampshire resident licensed to operate a commercial vehicle within that state.

The choice-of-law question which this court is called upon to resolve involves the statutory provisions of both New York and New Hampshire governing recovery in wrongful death actions. While the relevant New York statute allows the decedent's estate to recover "fair and just compensation for the pecuniary injuries resulting from the decedent's death" (EPTL 5-4.3), the New Hampshire law governing recovery for wrongful death is somewhat broader, permitting the finder of fact to "consider", as one of the "elements" of damage, the deceased's "capacity to earn money during his probable working life" (New Hampshire Revised Statutes Annot. § 556:12). The plaintiff urges the application of the New Hampshire law, and the court of first instance so ruled.

Historically, choice-of-law conflicts in tort actions had been resolved by applying the law of the place of the wrong. In Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279), the Court of Appeals abandoned the inflexible rule of lex loci delicti, holding that "controlling effect" must be given "to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation" (Babcock v. Jackson, supra, at 481, 240 N.Y.S.2d 743, 191 N.E.2d 279).

In recognition of the uncertainty created by Babcock and its progeny (Neumeier v. Kuehner, 31 N.Y.2d 121, 335 N.Y.S.2d 64, 286 N.E.2d 454; Tooker v. Lopez, 24 N.Y.2d 569, 301 N.Y.S.2d 519, 249 N.E.2d 394; Miller v. Miller, 22 N.Y.2d 12, 290 N.Y.S.2d 734, 237 N.E.2d 877; Dym v. Gordon, 16 N.Y.2d 120, 262 N.Y.S.2d 463, 209 N.E.2d 792), the Court of Appeals, in Schultz v. Boy Scouts of Amer., 65 N.Y.2d 189, 491 N.Y.S.2d 90, 480 N.E.2d 679), refined the interest analysis approach in an attempt to bring to it some predictability. Reiterating that the interest analysis entails a substantive determination of which jurisdiction has the greatest interest in the litigation, the court emphasized that " 'the facts or contacts which obtain significance in defining State interests are those which relate to the purpose of the particular law in conflict' " (Schultz v. Boy Scouts of Amer., supra, at 197, 491 N.Y.S.2d 90, 480 N.E.2d 679, quoting from Miller v. Miller, supra, 22 N.Y.2d at 15-16, 290 N.Y.S.2d 734, 237 N.E.2d 877). "Under this formulation, the significant contacts are, almost exclusively, the parties' domiciles and the locus of the tort" (Schultz v. Boy Scouts of Amer. supra, 65 N.Y.2d at 197, 491 N.Y.S.2d...