Summary
limiting total recovery for loss of paternal guidance by two adult children and for wife's loss of household services to $150,000
Summary of this case from Mono v. Peter Pan Bus Lines, Inc.Opinion
January 21, 1986
Appeal from the Supreme Court, Kings County (Mirabile, J.).
Judgment modified, on the facts and as an exercise of discretion, by reducing the principal sum awarded to plaintiff to $50,000, representing damages for decedent's pain and suffering, and by adding thereto a provision severing plaintiff's claim for pecuniary loss and granting a new trial with respect thereto unless the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the verdict in her favor for pecuniary loss to the principal sum of $150,000 and to the entry of an amended judgment accordingly. As so modified, judgment affirmed, without costs or disbursements. Plaintiff's time to serve and file a stipulation is extended until 20 days after service upon her of a copy of the order to be made hereon, with notice of entry. In the event plaintiff so stipulates, then the judgment in her favor, as so reduced and amended, is affirmed, without costs or disbursements.
Since there was absolutely no evidence from which the jury could infer that the decedent was in any way at fault in causing the accident, the trial court properly instructed the jury that, as a matter of law, they could not find contributory negligence on the part of the decedent (see, Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507; Willis v Young Men's Christian Assn., 28 N.Y.2d 375).
Although plaintiff testified that the decedent performed certain household duties for her and provided love, guidance and advice to the couple's adult sons, which is sufficient proof of pecuniary loss to sustain her cause of action for wrongful death (see, Richardson v Lutheran Hosp., 70 A.D.2d 933), we find the award for pecuniary loss, even as reduced to the principal sum of $350,000, to be excessive to the extent it exceeded $150,000. The decedent was 65 years old at the time of his death and had been retired for approximately six years. His only source of income was Social Security benefits. There was no proof that these benefits, thereafter paid to plaintiff as the decedent's widow, had been reduced. Although plaintiff testified that she lost the companionship of her husband as a result of the accident, there can be no recovery for loss of consortium in a wrongful death action (see, Liff v Schildkrout, 49 N.Y.2d 622).
However, the reduced award of $50,000 for the decedent's pain and suffering was appropriate compensation, based upon the testimony at trial (see, Juiditta v Bethlehem Steel Corp., 75 A.D.2d 126; Tenczar v Milligan, 47 A.D.2d 773). Mollen, P.J., Mangano, Lawrence and Kooper, JJ., concur.