Claim of Virkler v. B. R. De Witt, Inc.

24 A.D.2d 669, 261 N.Y.S.2d 466, 1965 N.Y. App. Div. LEXIS 3666

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 8, 1965
• Status: Published

Opinion

Per Curiam.

Appeal from an award of death benefits, appellants’ sole contention being that claimant was not a dependent. At the time of his death decedent was 31 years old and single. Claimant, his mother, was 68, had been widowed for 20 years, suffered from diabetes requiring regular medical treatment, hospital tests and special diet, and had an income consisting of pension and social security payments aggregating $1,650 per year. On the basis of an assumption unsupported by evidence, appellants would add $360 to this amount to arrive at an annual income of $2,010; as against which they compute her “living expenses” at $1,970, just $40 less than the amount which they assert to have been her income; such expenses being, however, some $320 more than her proven income. On this basis alone the award would have to be affirmed. Additionally, appellants omit from their computation of “living expenses” such items as clothing, transportation to hospital, doctor’s office or elsewhere and, in fact, allow little more than the minimal necessities of food and shelter. Further, appellants give no effect whatever to the substantial contributions to his mother’s maintenance made by decedent in the form of cash, food,' telephone, labor, purchases from time to time of such items as an electric range, an oil-burning furnace and plumbing fixtures, furnishing materials and labor for the maintenance of, and extensive additions to, and improvements of her home, and affording her regular transportation to doctor and hospital. Under the circumstances of this case and of this claimant, these contributions in themselves constitute some evidence of dependency, because it was “reasonable for the board to infer from the paucity of the [claimant’s] income that the [claimant] was detrimentally affected by the loss of decedent’s contributions”. (Matter of Markidis v. American Airlines, 21 A D 2d 927.) Decision affirmed, with costs to respondents filing briefs. Gibson, P. J., Herlihy, Reynolds, Taylor and Hamm, JJ., concur.