CHRISTOPHER MILCZARSKI AS ADMINISTRATOR OF THE ESTATE OF MARK MILCZARSKI DECEASED PLAINTIFF RESPONDENT v. APPEAL NO

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Supreme Court, Appellate Division, Fourth Department, New York.

CHRISTOPHER A. MILCZARSKI, AS ADMINISTRATOR OF THE ESTATE OF MARK A. MILCZARSKI, DECEASED, PLAINTIFF–RESPONDENT, v. MICHAEL K. WALASZEK, K.W. AUTO & SALES INC., DEFENDANTS–APPELLANTS, ET AL., DEFENDANTS. (APPEAL NO. 2.)

CA 12–02134

Decided: July 19, 2013

PRESENT:  CENTRA, J.P., FAHEY, CARNI, AND SCONIERS, JJ. BURDEN, GULISANO & HICKEY, LLC, BUFFALO (DONNA L. BURDEN OF COUNSEL), FOR DEFENDANTS–APPELLANTS.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting in part the motion of defendants Michael K. Walaszek and K.W. Auto & Sales Inc. for partial summary judgment and dismissing the complaint against those defendants insofar as it seeks damages for plaintiff's pecuniary loss beyond reimbursement of funeral expenses and for any pecuniary loss sustained by distributee Cynthia Craft and as modified the order is affirmed without costs.

Memorandum:  In this wrongful death action, Michael K. Walaszek and K.W. Auto & Sales Inc. (defendants) appeal from an order that granted their motion for leave to renew their motion for partial summary judgment seeking, inter alia, dismissal of the complaint insofar as it sought damages for decedent's family members for the pecuniary loss of support, guidance and companionship of decedent, but that, upon renewal, adhered to its prior determination denying the motion.   We reject defendants' contention that there are no issues of fact with respect to whether any of decedent's family members suffered pecuniary damages.   Damages in a wrongful death action are limited to “fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought” (EPTL 5–4.3[a] ).   “Pecuniary loss” is defined as “the economic value of the decedent to each distributee at the time decedent died” (Huthmacher v. Dunlop Tire Corp., 309 A.D.2d 1175, 1176), and includes loss of income and financial support, loss of household services, loss of parental guidance, as well as funeral expenses and medical expenses incidental to death (see Gonzalez v. New York City Hous. Auth., 77 N.Y.2d 663, 667–669;  DeLong v. County of Erie, 60 N.Y.2d 296, 306–308).   Generally, because it is difficult to provide direct evidence of wrongful death damages, the calculation of pecuniary loss “is a matter resting squarely within the province of the jury” (Parilis v. Feinstein, 49 N.Y.2d 984, 985;  see Altmajer v. Morley, 274 A.D.2d 364, 365).   On this record, we conclude that there are issues of fact with respect to whether plaintiff, as decedent's brother, suffered pecuniary loss in the form of funeral expenses and whether decedent's brother Matthew suffered pecuniary loss given the evidence of their longstanding close and interdependent relationship.   We agree with defendants, however, that they are entitled to summary judgment dismissing the complaint insofar as it seeks damages for plaintiff's pecuniary loss beyond reimbursement for funeral expenses and for any pecuniary loss sustained by decedent's sister, Cynthia Craft.   We therefore modify the order accordingly.

Frances E. Cafarell

Clerk of the Court