Powe v. Wise

Appellate Division of the Supreme Court of New York

Powe v. Wise

70 A.D.2d 654, 417 N.Y.S.2d 12, 1979 N.Y. App. Div. LEXIS 12112

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 28, 1979

StatusPublished

Cited by1 cases

This text of 70 A.D.2d 654 (Powe v. Wise) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Powe v. Wise, 70 A.D.2d 654, 417 N.Y.S.2d 12, 1979 N.Y. App. Div. LEXIS 12112 (N.Y. Ct. App. 1979).

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Opinion

— In [655]*655consolidated actions, inter alia, to recover damages for wrongful death, defendants Cippittelli Bros. Towing & Collision, Inc., and Jackson, in Action No. 1, appeal from an order of the Supreme Court, Queens County, dated December 19, 1978, which denied their motion for partial summary judgment on the wrongful death cause of action. Order reversed, on the law, without costs or disbursements, motion granted, and the cause of action for wrongful death is severed and dismissed as against appellants, with leave to plaintiff to apply at Special Term for leave to serve an amended complaint for wrongful death, if he can properly allege that there are in fact surviving distributees. An essential element of a cause of action for wrongful death (EPTL 5-4.1) is that the decedent be survived by distributees. The failure of the complaint to so allege, renders the cause of action dismissable for failure to state a cause of action. Damiani, J. P., Titone, Gulotta and Shapiro, JJ., concur.

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— In [655]*655consolidated actions, inter alia, to recover damages for wrongful death, defendants Cippittelli Bros. Towing & Collision, Inc., and Jackson, in Action No. 1, appeal from an order of the Supreme Court, Queens County, dated December 19, 1978, which denied their motion for partial summary judgment on the wrongful death cause of action. Order reversed, on the law, without costs or disbursements, motion granted, and the cause of action for wrongful death is severed and dismissed as against appellants, with leave to plaintiff to apply at Special Term for leave to serve an amended complaint for wrongful death, if he can properly allege that there are in fact surviving distributees. An essential element of a cause of action for wrongful death (EPTL 5-4.1) is that the decedent be survived by distributees. The failure of the complaint to so allege, renders the cause of action dismissable for failure to state a cause of action. Damiani, J. P., Titone, Gulotta and Shapiro, JJ., concur.

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Bluebook (online)

70 A.D.2d 654, 417 N.Y.S.2d 12, 1979 N.Y. App. Div. LEXIS 12112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powe-v-wise-nyappdiv-1979.

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