Manuel v Hwa Jung Son

[*1] Manuel v Hwa Jung Son 2018 NY Slip Op 51260(U) Decided on September 5, 2018 Supreme Court, Bronx County Capella, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 5, 2018
Supreme Court, Bronx County

Deneka Manuel, as Administrator of the Estate of TRE MANUEL-SMITH, Deceased, and on behalf of decedent's distributees, and DENEKA MANUEL, Individually, Plaintiffs,

against

Hwa Jung Son, M.D., SRINIVASAN KRISHNA, M.D., BRONX-LEBANON HOSPITAL CENTER, Defendants.



27088/16



Attorney for Plaintiffs:

Thomas J. Miller, Esq.

Turken & Heath, LLP

84 Business Park Drive - Suite 307

Armonk, New York 10504

(914)357-8600

Attorney for Defendants:

Erica B. Satler, Esq.

Sattler Law Group, PC

20 Vesey Street - Suite 503

New York, New York 10007

(212)766-4484
Joseph E. Capella, J.

The following papers numbered 1 to 3 read on this motion noticed on July 25, 2018, and duly submitted on July 25, 2018.

PAPERS/NUMBERED

NOTICE OF MOTION AND AFFIDAVITS ANNEXED 1

ANSWERING AFFIDAVIT AND EXHIBITS 2

REPLY AFFIDAVIT AND EXHIBITS 3

UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS [*2]MOTION IS AS FOLLOWS:

According to the bill of particulars, the damages sought in this medical malpractice action include personal injuries allegedly sustained by the decedent, TRE MANUAL-SMITH, and those for wrongful death allegedly sustained by the following family members: mother, DENEKA MANUEL (Deneka), father, TERENCE SMITH (Terence), aunt, LUCINDA JONES (Lucinda), and cousin, BREANNA KIMBROUGH (Breanna). By notice of motion, the defendants seek partial summary judgment (CPLR 3212) and dismissal of the pecuniary damages (excluding funeral and burial expenses) alleged by (1) mother-Deneka and father-Terence, on the premise that the adult decedent provided no financial support or services to them, and (2) aunt-Lucinda and cousin-Breanna, as they are not qualified distributees. A brief description of the facts that precipitated the instant action is warranted. On April 8, 2016, the decedent was brought to the emergency room of defendant, Bronx-Lebabon Hospital Center (Bronx-Lebanon), in an advanced state of sepsis. At 12:44 a.m., decedent underwent a slash tracheostomy, and at 12:46 a.m., he suffered a cardiac arrest. Although decedent was successfully resuscitated, intubated and transferred to the ICU, where he received a constant infusion of triple IV antibiotics, he succumbed to the sepsis and died five days later.

At the time of his death, decedent was 24 years old, unmarried and had no children. He was emancipated and living with his aunt Lucinda, in whose home he rented a room. Breanna, who is Lucinda's daughter and decedent's cousin, also resided in the same home. His mother, Deneka, lived at a different address with her boyfriend and their three children, and his father had long resided in the State of Maryland. The highest level of education attained by the decedent was one semester at ASA College. He subsequently became a security guard, followed by employment in loss prevention at a Rite Aid drug store, and then as a driver for Brinks Inc. In 2015, which is the year he turned 23 years old, he earned $3,402; thereafter, he worked for a brief time at Burlington Coat Factory, leaving that job in 2016 and not getting another job any time prior to his death. At the time of his hospitalization, the decedent did not have health insurance coverage either on his own or through his parents, and neither the parents nor any other alleged distributee paid decedent's medical bills. There are, however, no outstanding medical bills as it appears that Bronx-Lebanon received payment from Medicaid and/or a charity.

According to his mother, the decedent's cell phone bill was in her name, and decedent would give her money to pay his bill. Except for this payment, the decedent did not give his mother any other money. He visited his mother every three or four months, and although he did not perform any chores or repairs for her, he allegedly treated the family to dinner once every two to three months. After his death, his mother paid approximately $800 toward decedent's credit card bills, and $1,000 toward his phone bill. The mother testified that the decedent was not good at paying his rent to his aunt Lucinda on a regular basis, and that at the time of his death the decedent owed his aunt about $3,000 for the use of her credit cards. The mother paid $10,273 for decedent's funeral, and decedent left no will, nor was there any property or money to probate.

The decedent's father, Terance, has lived in the State of Maryland since decedent's birth. They've always lived apart, spoke infrequently and saw each other sporadically. His father had no involvement in his upbringing, provided no financial support, and they never exchanged cards or letters. However, the father testified that in 2014 and 2015 he bought about $400 worth of clothing and other things for the decedent. The decedent's aunt, Lucinda, testified that decedent [*3]paid her $350 per month to rent a room in her apartment, plus an additional $50 per month for electric usage. The aunt testified that decedent owed one month's rent at the time of his death.

The Court will first address the defendants request to dismiss the pecuniary damages alleged by the aunt, Lucinda, and cousin, Breanna, on the premise that they are not qualified distributees. As already noted, according to the bill of particulars, the mother, father, aunt and niece seek compensatory damages pursuant to New York Estates, Powers and Trust Law (EPTL) for decedent's alleged wrongful death. (EPTL § 5-4.3.) Under common law, there is no cause of action for wrongful death — and as the Court of Appeals noted in Gonzalez v NYCHA, (77 NY2d 663 [1991]), it was not until 1847 that New York adopted a statutory cause of action for wrongful death, now embodied in EPTL § 5-4.1. Therefore, given its derogation of common law, the EPTL must be strictly construed. (Farrar v Brooklyn, 73 NY2d 802 [1988].) According to EPTL § 5-4.3, damages are limited to fair and just compensation for the pecuniary injuries (emphasis added) resulting from the decedent's death to the person for whose benefit the action is brought. And the person(s) for whose benefit the action is brought include decedent's statutory distributees (emphasis added), which EPTL 5-4.4(a) describes for our purposes as follows: "where the decedent is survived by a parent or parents . . . the parent or parents will be deemed to be distributees for purposes of this section." This is consistent with EPTL § 4-1.1(4), which provides: "If a decedent is survived by . . . (4) One or both parents, and no spouse and no issue, the whole [estate passes] to the surviving parent or parents." Here, the decedent was unmarried with no children, and survived by both of his parents, making them decedent's statutory distributees. As such and strictly construing the EPTL, the survival of decedent by his parents eliminates any pecuniary loss claim by the aunt or niece. Therefore, that portion of the defendants' motion seeking partial summary judgment (CPLR 3212) and dismissal of the pecuniary damages alleged by the aunt and cousin is granted, and said claims are dismissed accordingly.

The defendants also seek partial summary judgment (CPLR 3212) and dismissal of the pecuniary damages alleged by the mother, Deneka, and father, Terence, on the premise that decedent provided no financial support or services to either of them. As previously mentioned, according to EPTL § 5-4.3, damages are limited to fair and just compensation for pecuniary injuries (emphasis added). (Gonzalez v NYCHA, 77 NY2d 663.) Since the inception of New York's wrongful death statute, the courts have steadfastly restricted recovery to pecuniary injuries, or injuries measurable by money, and denied recovery for grief, loss of society, affection, conjugal fellowship and consortium. (Liff v Schildkrout, 49 NY2d 622 [1980].) The premise for this restriction rests on the essence of New York's wrongful death statute — that plaintiff's reasonable expectancy of future assistance or support by the decedent was frustrated by the decedent's death. (Loetsch v NYC Omnibus, 291 NY 308 [1943]; Zelizon v Ullah, 2 AD3d 273 [1st Dept 2003].) Besides loss of support, voluntary assistance and possible inheritance, the courts have included medical and funeral expenses that were incidental to death as injuries for which damages may be recovered (Loetsch, 291 NY 308; Parilis v Feinstein, 49 NY2d 984 [1980]).

In determining pecuniary injuries, the courts have distinguished between wrongful death actions involving deceased minor children who were too young to have demonstrated any disposition or ability to support their surviving parents, (Parilis, 49 NY2d 984; Windus v Baker, [*4]67 AD2d 833 [4th Dept 1979]), and, as is the case here, deceased adult children with little connection to their surviving parents. Deceased minor (emphasis added) children who had no opportunity to create a record of their financial intentions or abilities are given the benefit of the doubt that they would have rendered chores and/or services to their parents, and upon reaching the age of maturity, they would have provided assistance and financial support to their parents. (Parilis, 49 NY2d 984; Brookman v Public Service, 86 AD2d 591 [2nd Dept 1982].) On the other hand, in those instances involving deceased adult (emphasis added) children, the distributee must produce actual evidence that demonstrates the decedent's predisposition to provide support and/or services. Keep in mind that the issue is not whether there is any chance whatsoever of recovery, but rather — whether there was any evidentiary basis for a reasonable expectation of pecuniary loss on the part of the parent. (Public Adm v US Fleet, 159 AD2d 331 [1st Dept 1990].) Also relevant to this determination is whether the decedent would have been legally obligated to support the distributees or, if he was not, whether there is any evidence that the decedent would have volunteered to do so (Public Adm, 159 AD2d 331).

The court will first address the request for pecuniary damages by decedent's father, Terence, and whether there is any evidence demonstrating that decedent was predisposed to provide him with support and/or services. Two cases, In re Pridell's Estate, (206 Misc 316 [Surrogate Ct, Jefferson Cty 1954]) and The Public Administrator, Kings County v US Fleet, (159 AD2d 331 [1st Dept 1990]), appear to be dispositive on this issue. The Surrogate Court in the proceeding In re Pridell's Estate, (206 Misc 316), held that the absence of any pecuniary injury barred the father's recovery in the settlement his minor son's wrongful death action. The father had separated from decedent's mother, had seen his son only twice in seven years preceding the son's death, had never corresponded with him, and had little or no knowledge of his son's health and education. The Surrogate determined that there had been no disposition on the part of the son to voluntarily aid the father during the son's lifetime, and "it would be extremely conjectural to anticipate that had the son lived, the father could have expected to have received any reciprocation from him other than in the kind the father had given." (Id. at 208.) In a more recent decision, the First Department in The Public Administrator, (159 AD2d 331), denied a father's request for pecuniary injuries involving the wrongful death of his 25-year-old son. The First Department found that the son had no legal obligation to support his father, who left the family household when the decedent was five or six years old. Although the father communicated by phone, he lost all contact with the son by the time decedent was 19 years old, they did not speak again for another four years, and were reunited on only two relatively brief occasions. In the end, the First Department concluded that there was no evidence that the father ever viewed his son as a source of support, nor was there any evidence that the son evinced any intention to assist his father, financially or otherwise.

In the instant action, the decedent and his father have always lived apart, and as already noted, the father has lived in an entirely different state (i.e., Maryland) since decedent's birth, had no real involvement in the decedent's childhood and provided no financial support. They spoke infrequently, never exchanged cards or correspondences, and saw each other sporadically. Overall, there is no evidence that the father ever viewed decedent as a source of support, nor is there any evidence that the decedent evinced any intention to assist his father. Therefore, that portion of the defendants' motion seeking partial summary judgment (CPLR 3212) and dismissal [*5]of the pecuniary damages alleged by the father is granted, and said claim is dismissed accordingly.

There still remains the pecuniary damages sought by decedent's mother, Deneka, who, according to the defendants, had no reasonable expectation that decedent would have ever supported her in the future. They note that decedent never made any contributions other than to pay his monthly cell phone bill, which appeared in his mother's name. The decedent did not live with his mother, and he paid his own rent and electricity. From July 2015 until his death, the decedent was unemployed with no health insurance. Lastly, the defendants note that the mother was fully employed, and lived in her own home with her boyfriend and their three children. According to the mother, however, the decedent did provide help in caring for her three children. She testified at her examination before trial as follows:

"If [my daughter] wanted sneakers, if she wanted pants, if she wanted toys, if she wanted to go out to eat, if she wanted to go to movies, he would just take her everywhere . . . [t]hey would go out to his friend's Sweet 16 . . . all of her graduations, her Girl Scout accomplishments, school accomplishments . . . [h]e went to some doctor's appointments . . . [w]hatever they needed, playing around with them, taking them to the park."

And as previously mentioned, the decedent visited his mother every three or four months, and allegedly treated the family to dinner once every two to three months.

In actions such as this, where the decedent was not a wage earner, the Court of Appeals has held that pecuniary injuries may be calculated, in part, from the increased expenditures required to continue the services provided, as well as the compensable losses of a personal nature, such as the loss of guidance. (Gonzalez, 77 NY2d 663.) In Zelizo v Ullah, (2 AD3d 273 [1st Dept 2003]), the testimony that the 23-year-old deceased son with improving job prospects had a close, loving relationship with his parent, was trying to repay them for his college expenses, and paid for their trip to Florida was some evidence that decedent was predisposed to help his parents. The First Department in Zelizo noted that while the quantum of damages was not established, all plaintiff-parent was required to do at the motion stage was to establish some evidence of pecuniary loss — the calculation of the precise amount was a question for the jury to determine. It must be kept in mind that the court's function in deciding a motion for summary judgment is issue finding rather than issue determination (Sillman v Twentieth Century-Fox, 3 NY2d 395 [1957]), and the evidence must be construed in a light most favorable to the one moved against. (O'Sullivan v Presbyterian, 217 AD2d 98 [1st Dept 1995].) Moreover, given that summary judgment is a drastic remedy, it should not be granted where there is doubt as to the existence of a triable issue, (Rotuba v Ceppos, 46 NY2d 223 [1978]), and in those instances, the issue of pecuniary loss should be left for the jury to resolve. (Zelizo, 2 AD3d 273.) Here, viewing the evidence in a light most favorable to the mother, (O'Sullivan, 217 AD2d 98), the decedent had to some extent a fairly close relationship with her and her three children, and provided voluntary support in the form of child care, which the mother could reasonably expect to have continued. Although concededly limited, the aforementioned is some evidence of a pecuniary loss, and as such, this is an issue that should be appropriately left for a jury to resolve. Therefore, that portion of the defendants' motion seeking partial summary judgment (CPLR 3212) and dismissal of the pecuniary damages alleged by the mother is denied.

The plaintiffs are directed to serve a copy of this decision/order with notice of entry by first class mail upon defendants within 30 days of receipt of copy of same. This constitutes the decision and order of this court.

Dated September 5, 2018

Hon.________/S/_______________

Joseph E. Capella, J.S.C.