Matter of Croswell
Annotate this CaseDecided on June 26, 2009
Sur Ct, Kings County
In the Matter of the Application of MARJORIE RAMBO, as Administrator of the Estate of Mary Croswell, Deceased, For leave to settle and Compromise a cause of action for Wrongful death.
919/04
For petitioner/movant (marjorie Rambo)
Robert D. Clark, Esq.
Clark, Cuyler & Mederos, L.L.P.
105 Court Street
Brooklyn, New York 11201
For objectant/respondent (Human Resources Administration)
Peter Tomecki, Esq.
Human Resources Administration
Office of Legal Affairs
Liens and Recovery Litigation Unit
180 Water Street, 18th Floor
New York, New York 10038
Diana A. Johnson, J.
In this proceeding to settle causes of action for conscious pain and suffering and wrongful death, the petitioner's motion to dismiss the objections of the Department of Social Services ("DOS") was converted into a motion for summary judgment pursuant to CPLR 3211(c).
The facts are not in dispute. The decedent was a sixty-seven year old woman who was confined to a wheel chair and required the help of home care aides daily. She was receiving public assistance. She had an adult daughter, who lives in Manhattan.
On the morning of August 17, 2002, while being cared for at her home by home health aides, she was found wedged between the mattress and the bed rail of her bed. The aides called 911 at 8:50 a.m. Emergency medical personnel responded to the call at 8:58 a.m. When they arrived, the decedent was unconscious, had no pulse and was not breathing. They initiated medical procedures so that, by 9:30, she could be transported to the Brookdale Hospital. At the hospital, she was placed on life support. She [*2]remained unconscious until she was declared dead at 7:45 a.m. the next day, August 18, 2002. The Medical Examiner listed the cause of death as positional asphaxia due to neck compression. During the entire time from the arrival of the emergency medical workers to her death, she remained unconscious. At the hospital, she was noted to be unconscious and unresponsive to painful stimuli.
The Court issued letters of administration to petitioner, a sister of the decedent and the designee of the daughter, on May 26, 2004. The petitioner brought actions for conscious pain and suffering and wrongful death against the manufacturer of the bed, the bed's maintenance agency, the home care agency and the home care aides assigned to the decedent's care at the time. The home care aides were deposed. The actions were settled before trial for $100,000.
The petitioner then brought the instant proceeding to authorize her to settle the actions and to account for the proceeds. The petitioner asked that the proceeds of the settlement be allocated to the wrongful death cause of action on the ground that it could not be shown that the decedent suffered pain and suffering and, if so, for how long. DOSS filed a notice of claim for reimbursement of the amount of public assistance provided the decedent, $786,535.60. DOSS also filed objections to petition, objecting to the allocation of the entire proceeds of the settlement to the wrongful death cause of action.
The petitioner moved to dismiss the Commissioner's objections. Petitioner claimed that from the decedent was found wedged between the mattress and the bed rail until the time she died, she never regained consciousness or had sufficient cognitive state to suffer pain. Therefore, the petitioner argued that there was no basis to allocate any of the proceeds to the conscious pain and suffering cause of action, citing Cummings v County of Onondaga, 84 NY2d 322 (1994); Ramos v Shah, 293 AD2d 459 (2d Dept 2002); Zurita v McGinnis, 7 AD3d 618 (2d Dept 2004); and Matter of Hill, 2007 NY Slip Op 51228(U), 2007 NY 0006836 (Sur Ct, Nassau County 2007). Since DOSS's right to recovery is limited to assets of the estate, the petitioner claimed that the objections of DOSS should be dismissed.
DOSS, on the other hand, argued that, even though the decedent might never have regained consciousness after being found by the paramedics, this did not rule out conscious pain and suffering between the time of the accident and the arrival of the emergency personnel at 8:58 a.m. the morning of August 17, 2002. DOSS further argued that any award for wrongful death was limited by the decedent's daughter pecuniary loss. In the instant case, there was no proof that the decedent's daughter suffered any pecuniary loss. Therefore, DOSS claimed that the daughter was entitled to only a minimal award for wrongful death, with the balance paid to the estate for conscious pain and suffering and, ultimately to DOSS in payment of its claim.
The Court denied the petitioner's motion to dismiss, finding that both sides had presented
factual evidence suitable that could properly be considered in a motion for summary judgment.
Accordingly, the Court treated the motion as one for summary judgment pursuant to CPLR
3211(c). Pursuant to the statute, the parties were given additional time to submit additional
evidence in support of their positions. The petitioner waived her right to submit additional
evidence and asked that the Court render its decision based on her previous submissions. DOSS
submitted an additional [*3]affirmation in support of its position.
Discussion
Summary judgment is a drastic remedy, which should be granted only where there is no clear triable issue of fact. Andre v Pomeroy, 35 NY2d 361 (1974); Sillman v Twentieth-Century-Fox Film Corp., 3 NY2d 395 (1957). Accordingly, the movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v Prospect Hosp., 68 NY2d 320 (1986): Matter of Lucia, 2 AD3d 638 (2d Dept 2003). "Even the color of a triable issue forecloses the remedy." Rudnitsky v Robbins, 191 AD2d 488, 489 (2d Dept 1993).
The failure to make such a showing requires denial of the motion, regardless of the sufficiency, or insufficiency, of the opposing papers. Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 (1985). Once such a showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring a trial of the proceeding. Zuckerman v City of New York, 49 NY2d 557 (1980). The party opposing summary judgment is afforded every favorable inference that may be drawn from the evidentiary facts alleged. McArdle v M & M Farms, 90 AD2d 538 (2d Dept 1982). General conclusory and unsupported allegations, however, are insufficient to defeat a motion for summary judgment. Iselin & Co. v Mann Judd Landau, 71 NY2d 420 (1988).
To recover for conscious pain and suffering, the plaintiff must meet the "threshold burden of proving consciousness for at least some period of time following an accident in order to justify an award of damages for pain and suffering." Cummins v County of Onandaga, 84 NY2d 322, 324 (1994); see also McDougald v Garber, 73 NY2d 246 (1989). The burden can be satisfied by direct or circumstantial evidence. Gonzalez v New York City Hous. Auth., 77 NY2d 663 (1991). "Mere conjecture, surmise or speculation is not enough to sustain a claim for [conscious pain and suffering] damages." Fiederlein v New York City Health & Hosps. Corp., 56 NY2d 573, 574 (1982). Even if some cognitive level of awareness is shown, there must be proof of conscious pain and suffering. Fiederlein, supra, at 574-575; see also Lopez v Gomez, 305 AD2d 292, 293 (1st Dept 2003).
DOSS first argues that the petitioner, in her complaint, alleged that the decedent suffered significant pain and suffering. Therefore, DOSS argues, the petitioner cannot now claim that the decedent suffered no conscious pain and suffering. The claim for conscious pain and suffering (and for wrongful death) were terminated by execution of a settlement. "The settlement of the previous case prior to the entry of judgment operated to finalize the action without regard to the validity of the original claim, and the action was accordingly considered, in contemplation of law, as if it had never begun." Peterson Forkey, 50 AD2d 774, 775 (1st Dept 1975); see also Yonkers Fur Dressing Co. v Royal Ins. Co., 247 NY 435 (1928); Ott v Barash, 109 AD2d 254262-263 (2d Dept 1985).
In the instant case, the evidence submitted by the petitioner establishes that the decedent was unconscious when found by the emergency workers at 8:58 a.m. on the morning of August 17, 2002, and never regained consciousness when she died at 7:45 the next day. Even if the decedent had some level of consciousness after the emergency [*4]workers arrived, she never exhibited sufficient cognitive functions after that point to support a finding that she suffered pain and suffering. See Whalen v Daugherty, 30 AD2d 604 (3d Dept 1968)(conscious pain and suffering claim disallowed where there was some evidence of consciousness but no evidence indicating the decedent suffered pain and suffering).
However, the record is bare as to the decedent's consciousness, or lack of consciousness, from the time of the accident to the time the emergencies workers first saw her. The petitioner alleged that the accident occurred while home care aides were bathing her. Petition, Paragraph 6. Yet the only evidence submitted to support the fact that the decedent never was conscious is the statement of the petitioner's attorney that "Mary Croswell was unconscious from the moment her nurse found her wedged between the mattress and the bed rail until she was officially pronounced dead in the hospital the next day." Affirmation of Robert Clark, Esq., sworn to October 29, 2008, Paragraph 1.
The petitioner was invited to submit additional evidence in support of summary judgment but elected not to do so. The only evidence on point before the court is the statement in the affirmation of counsel is without evidentiary value. Zuckerman v City of NY, 49 NY2d 557; Israelson v Rubin, 20 AD2d 668 (2d Dept 1964), affd 14 NY2d 887 (1964).
Petitioner's reliance on such cases as Cummins v County of Onondaga, supra, is misplaced. In Cummins, the decedent died when her car careened off a county road, flipped over, and landed upside down in a lake. There was a large bruise on her scalp consistent with a dent in the roof of a car. An eyewitness to the accident did not hear any cries from the decedent. The police arrived within a few minutes. They found no sign of consciousness or indication that the decedent tried to escape. The medical examiner testified that he could not determine if the decedent ever regained consciousness. Faced with these facts, the Court of Appeals held that there was no evidence from which a rational jury could find that consciousness after the accident and affirmed the judgment notwithstanding the verdict and dismissed that part of the jury verdict awarding damages for conscious pain and suffering.
In Zurita v McGinnis, supra, the decedent died after being struck by a car. At trial, there was no evidence that the decedent cried out, spoke or made intentional movements following impact. The Appellate Division found that there was no basis from which a rational juror could have found that the decedent was conscious following the accident and dismissed the judgment against the defendant of $3,170,000 for conscious pain and suffering.
Here, there is no evidence of when the accident occurred or the decedent's condition immediately after the accident. The medical record does not establish that the decedent became unconscious immediately. Nor is this a case where there is no possibility of further inquiry, such as faced the Court of Appeals in Fiederlein v New York City Health & Hosps. Corp., supra. In that case, the decedent was released on a pass from a psychiatric hospital in January, 1975. The decedent was not seen until his body was discovered in a river in March, 1975. In an action for medical malpractice, the Appellate Division, First Department, held that there was no evidence that the decedent suffered any conscious pain and suffering. This determination was affirmed on appeal.
In the instant case, there are home care aides who were present when the [*5]accident occurred and could presumably testify about the decedent's condition after the accident and before the arrival of the emergency workers. Based on the above, the petitioner has not established that she is entitled to summary judgment on the lack of conscious pain and suffering by the decedent as a matter of law.
As for the claim of DOSS that the decedent's daughter suffered only minimal pecuniary damages, DOSS admits that the daughter is entitled to recover for pecuniary damages in a wrongful death action for such damages as a result of the loss of moral support, companionship and counsel from the decedent. The petitioner has alleged such losses. Since there has been no discovery on this issue, the search of the record is insufficient to establish that DOSS is entitled to summary judgment on the question. CPLR 3212(b).
Accordingly, summary judgment for petitioner is denied. Since summary judgment is being considered as a result of a motion to dismiss the objections of DOSS prior to discovery, denial of summary judgment is without prejudice to renewal upon completion of discovery.
The Clerk of the Court is directed to mail a copy of this decision to all parties who have appeared in this proceeding.
This constitutes the decision and order of the Court.
_/s/__________________________
HON. DIANA A. JOHNSON
S u r r o g a t e
Dated: June 26, 2009
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
