Lando v. State

39 N.Y.2d 803 (1976)

Ferdinando Lando, Individually and as Administrator of The Estate of Rose Lando, Deceased, Appellant, v. State of New York, Respondent. (Claim No. 54483.)

Court of Appeals of the State of New York.

Argued March 22, 1976.

Decided May 4, 1976.

Sanford Solarz and Sidney J. Shaw for appellant.

Louis J. Lefkowitz, Attorney-General (Jeremiah Jochnowitz and Ruth Kessler Toch of counsel), for respondent.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.

*804MEMORANDUM.

We agree with the Appellate Division that the claimant, as administrator, failed to present sufficient proof to support the estate's claims for his deceased daughter's conscious pain and suffering before death and for her wrongful death. However, since we agree with the Court of Claims that he did prove his claim for his own mental anguish, a matter not discussed by the Appellate Division in its opinion, there should be a modification.

The record amply demonstrates that the hospital, once learning that claimant's daughter had disappeared, negligently failed to undertake a careful and diligent search of the hospital premises in order to locate this mentally deficient patient. The inadequacy of the purported search is pointed up by the fact that the daughter's body when found was lying in a wooded area of the hospital grounds a mere 50 feet from the edge of the parking lot of the building adjacent to the one in *805 which she resided. The claimant was, therefore, entitled to damages for the mental anguish he suffered when, solely by reason of the hospital's negligence, he was denied access to and control over the body of his deceased daughter for a period of 11 days.

Accordingly, the order of the Appellate Division should be modified by reinstating the judgment in favor of the claimant, individually, in the amount of $5,000 and, as so modified, affirmed.

Order modified, with costs to claimant, in accordance with memorandum herein and, as so modified, affirmed.