Phiri v. Joseph

32 A.D.3d 922, 822 N.Y.S.2d 573

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 19, 2006
• Status: Published

Opinions

In an action, inter alia, to recover damages for wrongful death, the defendants appeal from an order of the Supreme Court, Westchester County (Jamieson, J.), entered April 26, 2005, which denied their motion for summary judgment dismissing the plaintiffs’ claims to recover damages for conscious pain and suffering and lost future earnings.

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was for summary judgment dismissing the claim to recover damages for conscious pain and suffering, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

On a motion for summary judgment dismissing the plaintiffs’ claim to recover damages for the decedent’s conscious pain and suffering, the defendants bore the initial burden of showing that the decedent did not suffer conscious pain and suffering (see Schild v Kingsley, 5 AD3d 103, 104 [2004]; Massey v New York City Hous. Auth., 230 AD2d 601, 602 [1996]). The defendants satisfied this threshold burden and, in opposition, the plaintiffs failed to raise a triable issue of fact. An eyewitness to the subject accident testified that he did not see the decedent move or hear Mm make any sound immediately following the accident. Similarly, the defendant bus driver, Nathan D. Joseph, testified that the decedent did not move after the accident, and he did not know whether the decedent was breathing. The police report stated that the accident occurred at 4:35 p.m. and the decedent was pronounced dead at the scene at 4:50 p.m. There was no evidence that the decedent had any level of awareness following the accident. Thus, the plaintiffs are not entitled to recover damages for conscious pain and suffering (see Zurita v McGinnis, 7 AD3d 618, 619 [2004]; cf. Ramos v Shah, 293 AD2d 459 [2002]). “Without legally sufficient proof of consciousness following an accident, a claim for conscious pain and suffering must be dismissed” (Cummins v County of Onondaga, 84 NY2d 322, 325 [1994]). Mere conjecture, surmise, or speculation is insufficient to sustain a claim to recover damages for conscious pain and suffering (id.).

Further, there was no evidence that the decedent experienced “preimpact terror” (Anderson v Rowe, 73 AD2d 1030, 1031 [1980]; cf. Lang v Bouju, 245 AD2d 1000, 1001 [1997]). Contrary to the determination of our dissenting colleagues, a finding that the decedent perceived grave injury or death, so as to justify making an award for “preimpact terror,” would be based on mere speculation. Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing the plaintiffs’ claim to recover damages for conscious pain and suffering.

However, the Supreme Court properly denied that branch of the defendants’ motion which was to dismiss the plaintiffs’ claim to recover damages for lost future earnings (see Majlinger v Cassino Contr. Corp., 25 AD3d 14 [2005], affd 6 NY3d 338 [2006]). Miller, J.P., Krausman and Rivera, JJ., concur.