December 11, 1957
Martin, Clearwarer Bell for Benjamin S. Golub, defendant.
Aaron J. Broder for plaintiff.
By this motion one of the defendants seeks to dismiss the complaint as to said defendant upon the ground that the cause or causes of action stated by the plaintiff did not accrue within the time limited by law for the commencement of such actions.
The administratrix has pleaded two causes of action against the defendants. The first seeks damages for the pain and suffering and for the moneys expended by the deceased for medical care resulting from the "negligence and malpractice of the defendants." The second cause of action is for wrongful death. However, there is realleged therein the paragraphs of the first cause of action, so that this second cause of action also claims damages for pain and suffering.
The moving defendant physician attacks the first cause of action, asserting that the two-year period within which a plaintiff must bring an action based on malpractice has expired. The second cause of action, it is urged, cannot be a wrongful death action, since it claims damages for pain and suffering.
Although the court may be warranted in dismissing portions of causes of action on a motion addressed to the complaint, the allegations of the pleaded first cause of action as to negligence and malpractice are not readily separable. The allegations of the second cause of action improperly incorporate allegations of the first repugnant to section 130 of the Decedent Estate Law, which permits recovery for the pecuniary injuries resulting from the decedent's death, but nothing else. An administratrix in a proper case may recover for the damages suffered by the decedent and for the damages sustained by others as a consequence of death. The separate and distinct wrongs, however, should be separately stated and numbered.
The complaint is dismissed, with the right to plaintiff to serve a further amended complaint separately stating and numbering the several causes of action for personal injuries and separately stating and numbering the cause of action for wrongful death as to each defendant.
Further amended complaint shall be served within 20 days following service of the order to be entered hereon, with notice of entry.