Lofaro v Vincent W. NG

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Lofaro v Vincent W. NG 2011 NY Slip Op 33512(U) December 20, 2011 Supreme Court, New York County Docket Number: 105572/09 Judge: Joan B. Lobis Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCANNED ON 11612012 SUPREME COURT OF THE STATE OF NEW YORK I - NEW YORK COUNTY PART 6 MOTION DA7t MOTION 8EQ, NO. s7AI The followlng papem, numbmrad 1 to 4 Notlos of Motlonl Order to Show Caurm Anrwsrlng Affldavtta - MOTION UAL. NO. wero read on thlo motion tolfor - Affldavlta - Exhlbhr ,.. - Exhibit# Replying Affldavtta 0, q pt4J SU"7.j ' Cross-Motion: 0 Yes No FILED Upon the fomgolng papen, It Io ordrred that thlr rnotlon JAN 05 2012 i 4 2 Y I ! s E D Dated: Check one: c FINAL DISPOSITION ] I Check if appropriate: 0 DO NOT POST u SUBMIT ORDER/ JUDQ. NON-FINAL DISPOSITION 0 REFERENCE SElTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: IAS PART 6 ~ ~ ~ ~ ~ ~ 1 1 1 ~ ~ 1 ~ ~ ~ ~ - ~ ~ ~ _ - 1 -_ 13 1 1 _ - 1 1 _. _ - - . .I-_- c 1 _ . -_1 - - - - - - 3_ 1 MlCWAEL LOFARO, As Administrator of the Estate of FRANCIS J. LOFARO,Deceased, Plaintiff, -against- VINCENT W. NG, M.D., NEW YORK DOWNTOWN MEDICAL ASSOCIATES,INC., and QUEST DIAGNOSTICS WCORPORATED, I X Index No. 105572109 Defendants. FILED JAN 0 5 2012 Defendants New York Downtown Medical Associates, Inc. ( NYDMA ) (Sequence 004), Quest Diagnostics Incorporated ( Quest ) (Sequence 005), and Vincent W. Ng, M.D.(Sequence 006) move, pursuant to C.P.L.R. 6 3212(a), for partial summary judgment in their favor, dismissing certain claims against them for damages in this wrongful death action. Plaintiff is the administrator of the estate of his deceased son, Francis J. Lofaro, who died on September 10,2007 at the age of This case sounds in medical malpractice and wrongful death. On September 5,2007, decedent presented to D .Ng at NYDMA with complainb of thirst, a swollen tongue, and a fever. r D .Ng thought that decedent w s having a problem in his salivary glands. D .Ng drew blood and r a r recommended that decedent see an ear, nose, and throat doctor. Mr.Lofaro was found dead in his apartment five days later. The results of decedent s blood test revealed that his glucose level was 553 mg/dL, a levcl rcquiring urgent medical care. The autopsy listed the c a w of death as hyperglycemic hyperosmolar nonketotic syndrome due to diabetes mellitus. [* 3] Defendants seek an order dismissing plaintiffs claim for wrongfil death damages predicated on future lost earnings, on the grounds that future lost camings cannot beestablished with reasonable certainty because there is no competent evidence that decedent would have provided financial support to his parents, or precluding plaintiff from offering proof at trial of future lost earnings. Alternatively, defendants seek an order precluding plaintiff f o offering proof as to the rm projected earnings of an attorney or paralegal as a basis for establishing decedent s future lost earnings, and precluding plaintiff from offering proof as to decedent s ostensible plans to attend law school. Additionally, defendants seek an order precluding plaintiff from offering proof as IO grief or loss of companionship under the guise of a claim for loss ofhousehold services. Plaintiff opposes all the motions on the merits and also argues that Dr. Ng sand Quest s motions are untimely. As to the issue of the timeliness of Quest s and Dr. Ng s motions, this court s part rules set forth that summaryjudgment motions must be made no later than sixty (60) days after the filing of the note of issue. Quest filed ita motion one (1) day late, and D .Ng filed his motion six r (6) days late. Both Quest and D .Ng maintain that plaintiff was neither surprised nor prejudiced by r the delay and that the delay was minimal. In addition, Quest argues that the delay was due, in part, to plaintiffs failure to respond to NYDMA s correspondence regarding the details of plaintiffs claim for special damages. The latter argument is not persuasive, since NYDMA, the entity requesting the information on special damages, WEN able to timely file its summaryJudgment motion. r However, Quest and D .Ng correctly argue that then: is no prejudice to plaintiff as a result of thc late filing. Moreover, the relief they seek is not dispositive of plaintiffs liability claim. Though styled BS motions for partial summaryjudgment, the motions address evidentiary issues and are akin -2- [* 4] to in limine motions. The case on which plaintiffs rely, Prill Y. Citv of New Yo& , 2 N.Y.3d 648 (2004), is distinguishable on this basis. Accordingly, the court will consider the merits of Quest s and Dr.Ng s motions, together wt NYDMA s motion. ih As to the first claim regarding lost earnings resulting in pecuniary loss to dccedtnt s parents, defendants argue that plaintiff cannot establish that decedent provided his parents with financial support during his lifetime, therefore any award to the parents would be based on speculation. They also argue that decedent had m unimpressive academic carter, having slartcd college at one institution, Franklin & Marshall College, in 1993, but not having graduated until 2003 from another institution, Naw York University. They cite to his employment history, first in computer science and then as a clerk in a law ofice where his earnings were under S 10,000 per year, as a further basis to preclude evidence of his future earnings. They acknowledgethat he completed a paralegal course just prior to his death, but argue that he had no track record of earnings in the field. They also raise the fact that decedent had a history of treatment for depression as a Further basis to restrict evidence on future earnings. They argue that any commentshe may have made about his intentions to attend law school cannot serve as a basis for assessing his fUturt! earnings as a lawyer. They argue that there is little evidence of decedent providing his parents with m y financial contributions or services. For these reasons, defendants ask this court to preclude plaintiff from offering testimony at trial of the pecuniary iqjury to dccedcnt s distributees, his parents, by reason of his death. In the alternative, they ask that plaintiff be precluded f o offering any evidence of rm future lost earnings. -3- [* 5] As B separate basis for relief, defendants argue that decedent's history is insufficient to establish wt reasonable certainty a level of Future eamings as a paralegal. They argue that the ih lack of a work history would mean any award by a jury would be speculation. Therefore, they ask that plaintiff be precluded from presenting any cvidencc of decedent's firtutu earning capacity as a paralegal at trial. Finally, defendants seek to preclude plaintiff from presenting any evidence of grief, loss of companionship, or loss of consortium under the guise of a claim for loss of household services. It is axiomatic that wrongful death actions arc for pecuniary losses only. Defendants argue that, ag thc economic losses in this case arc minimal, plaintiffs claim for damages of $1,500,000 for each parent must be impermissively adding compensation for their grief over losing their son. Accordingly, defendants maintain that the court should issue an order precluding plaintiff f o rm offering at trial any evidence of grief or loss of companionship. Plaintiff counters by assertingthat defendantsarr:urging an impermissively restrictive view of what can be offered at trial. H firther argues that the jury may hear evidence of probable e earnings and that his proof is not limited to decedent's actual work history. Plaintiff docs not seek to offer proof of decedent's future earnings as a lawyer, but does seek to have the jury consider the likelihood of decedent's employment as a paralegal. Plaintiff cites to decedent's completion of paralegal education as an accomplishment, not merely an aspiration, so that evidence of earnings as a paralegal should bc allowed at trial. Plaintiff states that the courts have consistently allowed expert testimony on future earning capacity for very young children with far lesser attainmants. -4- [* 6] Plaintiff argues that the record supporls his claim that decedent had economic value to his parents. He points to deposition testimony of services performed by decedent and the assistance he provided to his parents. Plaintiff disputes that he will be seeking compensation for grief or loss of companionship. For these reasons, he asks the court to deny defendants motions. It is well established that wrongful death actions must bc limited to fdr and just compensation for the pecuniary injuries resulting from the decedent s death to the persons for whose benefit the action is brought. E.P.T.L. 6 5-4.3(a); , - 7I N.Y.2d 198,203 (1 988). It is also well established that any ~ w cannot be d based onuncertainty,contingency,or speculation. & w e i n v, New York b, 56 N.Y.2d 573,574 (1382). But, courts have repeatedly allowed juries to consider the issues of fhturcsupport and future earnings as long as there is some evidence upon which the jury can infer future pecuniary loss. v. U l b, 2 A.D.3d273 (1st Dep t 2003); w,A.D.2d 436 (1 st Dcp t 1959);LIprabn v.-D 7 o 43 A.D.2d 65 (3d Dep t 1973). Defendants argue that the amount sought can only be justifiedas compensation for emotional loss. Clearly, plaintiff cannot recover for such loss. However, it would be heartless to expect a parent to testify about their son devoid of emotion. Them is no basis for preclusion at this time based alone on this argument. After reviewing all the arguments for preclusion, all limitations on how the evidence is to be presented and which claims for damages go to the jury is best left to the trial judge. Accordingly, it is hereby ORDERED that defendants respective motions (Motion Sequence Numben 004, -5- [* 7] 005, and 006)are denied in their entirety; and it la h t c rh r ORDERED that the parties shall appear for a pretrial conference on January 3 1,2012, at 9:30 a.m., at 60 Centre Strcet, Room 345, New York, New York. FILED -6-

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