Manessis v Chang-Nam Song

[*1] Manessis v Chang-Nam Song 2005 NY Slip Op 51148(U) Decided on May 18, 2005 Supreme Court, Queens County Kelly, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 18, 2005
Supreme Court, Queens County

Georgia Manessis, as Administrator of the goods chattles and credits which were of CHRISTOS MANESSIS, Deceased, Plaintiff,

against

Chang-Nam Song et al., Defendants.



3111/2003

Peter J. Kelly, J.

This negligence action arises from a traffic accident that occurred on Jericho Turnpike in Smithtown, New York which resulted in the death of Christos Manessis. On October 30, 2001 at approximately 8:15 p.m., the plaintiff, a pedestrian, was attempting to cross Jericho Turnpike in a northbound direction. The defendant Lawrence John Gunther ("Gunther") was operating a vehicle in the right lane of Jericho Turnpike traveling westbound. Gunther testified that he first observed the decedent when he was roughly two car lengths away and averred that the decedent ran into the side of his car then hit his windshield. As a result of the impact, the decedent was [*2]apparently thrown into the left westbound lane.

Just prior to the accident, Soon-Hyang Song ("Song") was operating a vehicle in the same direction and lane as Gunther. Upon seeing the Gunther vehicle stopped in the right lane, Soon moved to the left lane and ran over what she described feeling like a "bag of garbage or a big sponge", which turned out to be the decedent. Song admitted she never observed the decedent prior to running him over.

The Song defendants move for summary judgment on the issue of liability. Additionally, the Song defendants assert that the plaintiff's claims for wrongful death and conscious pain and suffering must be dismissed as there is no proof of pecuniary loss on behalf of surviving family or conscious pain and suffering sustained by the decedent.

The motion is denied in its entirety as the affirmations submitted in support of the motion and in reply by Song's counsel are woefully inadequate. Although the factual background of the circumstances underlying this action are laid out in satisfactory detail, counsel cites not one statute, rule, regulation, ordinance nor any case authority (even mere boilerplate case authority delineating the procedural rules on a summary judgment motion are absent) to support the propositions proffered by the Song defendants in their moving papers.

It is not the role of this court to operate as the paralegal for movants and ferret out legal authority to justify their requests for relief. The litigants, through their counsel, are obligated to present for acceptance by the court the precise legal theories upon which their arguments are based and the legal authority supporting these contentions.

Despite this inexcusable failure on the part of the movant's counsel, the Song defendants' motion must be denied. Notwithstanding that the decedent may have acted without due care when crossing Jericho Turnpike, an issue of fact exists as to whether the defendant Soon exercised due care to avoid running over the decedent (See, VTL §1146; Marquis v Eisenstein, 5 AD3d 741; Johnson v Lovett, 285 AD2d 627).

The branch of the motion seeking to dismiss the conscious pain and suffering claims is denied as the movants failed to establish a prima facie case. The sole evidence proffered by the movants, the testimony of Gunther that during his brief observation of the decedent that he did not move of make a sound, is patently insufficient to establish that the decedent was rendered unconscious as a result of the accident and remained in that state until his death (cf., Collins v Jamaica Hosp., 195 AD2d 534).

With respect to the wrongful death claim, a plaintiff may recover for pecuniary injuries resulting from a decedent's death, including any funeral expenses paid by the distributees (See, EPTL 5-4.3[a]; Erbstein v Savasatit, 274 AD2d 445). Here, the administrator testified that the cost of the decedent's funeral was approximately $10,000.

In addition, a plaintiff may recover for the loss of services or support previously provided by the decedent, regardless of whether the decedent was under a legal obligation to provide support (See, Gonzalez v New York City Housing Auth., 77 NY2d 663; Zelizo v Ullah, 2 AD3d 273; DeLuca v Gallo, 287 AD2d 222; Driscoll v Akron Fire Co., 251 AD2d 1042; Ramos v LaMontana Moving & Storage, 247 AD2d 333).

Again through her testimony, the administrator provided some evidence of such other pecuniary loss and, as a result, the calculation of the precise amount is triable issue (see Zelizo v [*3]Ullah, supra).

Dated: May 18, 2005

Peter J. Kelly, J.S.C.