Preview
FILED: RICHMOND COUNTY CLERK 11/13/2023 08:21 AM INDEX NO. 151120/2021
NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 11/13/2023
EXHIBIT “R”
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NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 11/13/2023
PJI 2:320 Pattern Jury Instructions
6. Action for Wrongful Death and Conscious Pain
PJI 2:320. Damages—^Actions for Wrongful Death and
Conscious Pain and Suffering
As you have heard, the plaintiff, EF, is the rep
resentative of the estate of AB. EF makes two
claims: the first claim seeks damages on behalf of
[Z^s^ distributees] resulting from the death of AB and
the second claim seeks damages for the injuries
suffered and losses sustained by AB before (he,
she) died. You must separately consider each of
these claims.
As to the first claim, damages are the amount
that you find to be fair and just compensation for
the monetary losses resulting from AB’s death to
each of the persons for whom this claim is brought.
Those persons are: [list the distributees by name and
state their relationship to decedent].
EF claims that these individuals have sus
tained monetary loss as a result of AB’s death in
that [state items of pecuniary loss claimed by plaintiff].
Defendant CD claims [state CD’s claims in relation to
distributees’ alleged pecuniary loss].
The law limits damages resulting from AB’s
death to monetary injuries. You may not consider
or make any award for sorrow, mental anguish,
injury to feelings, or for loss of companionship.
You must decide the monetary losses to [list the dis
tributees by name] caused by AB’s death on [give date
of death]. In deciding the amount of monetary
losses, you should consider the character, habits
and ability of AB; the circumstances and condition
of [list the distributees by name]; the services that AB
would have performed for (him/ her, them); the
portion of (his, her) earnings that AD would have
spent in the future for the care and support of [list
the distributees by name]; the age and life expectancy
of AB; the ages and life expectancies of [Zisi the dis
tributees by name]; and [where the distributees include
children] the value of the intellectual, moral, and
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physical training, guidance and assistance that AB
would have given the children had (he, she) lived.
You should also consider the amount, if any, by
which AB, if (he, she) had lived, would have in
creased (his, her) estate from (his, her) earnings
and thus added to the amount that would have
been inherited from (him, her), provide.d that you
find that at least one of [list the distributees by name}
would have been alive to inherit from'(him, her)
had AB not died on [state date of death}.
ab was, at the time of (his, her) death [state
age} and, according to the life expectancy tables,
'5' ' had a life expectancy of [state number of years}. (His,
her) spouse was then [state age} and had a life ex
pectancy of [state number of years}. The children
were [state ages} and had life expectancies, respec
tively of [sto^e number of years}. Life expectancy
tables are simply statistical averages. A person
might live longer or die sooner than the time
indicated by those tables. The figures I just men
tioned are not controlling but may be considered
by you together with the evidence you heard
concerning the health, habits, employment and
activities of AB prior to (his, her) death and those
of [list the distributees by name} in determining what
their respective life expectancies were at the time
AB died.
You must decide what portion of (his, her)
earnings AB would have spent for the care and
support of [list the distributees by name}. In making
your decision, you must consider: the amount AB
earned per (week, month, year) prior to (his, her)
death; the part of those earnings that AB contrib-
uted to the care and support of each of the distrib- /
utees and the pattern of those contributions; the
position that AB had with (his, her) employer at
the time that (he, she) died; (his, her) prospects for
advancement and the probabilities with respect to
(his, her) future earnings; the risks of (his, her) oc
cupation; the condition of (his, her) health and the
length of time that (he, she) would reasonably be
expected to continue working. As to this last fac-
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PJI 2:320 Pattern Jury Instructions
tor, the work expectancy of AB was, according to
work expectancy tables, [stoie number of years]. That
figure, like the life expectancy figures I mentioned
earlier, is only a statistical average and is fur
nished simply as a guide. In determining what por
tion of (his, her) available earnings AB would have
applied in the future to the care and support of
(his, her) children, you should consider that AB
was not legally obligated to contribute to the sup
port of any child who became 21 years old. How
ever, AB could have stopped supporting a child
under 21 who [e.g., became self-supporting] or could
have decided to continue to support a child who
was older than 21. If, on the evidence, you deem it
reasonably probable that any of the children
would have [e.g., become self-supporting] prior to age
21, or that AB would have contributed to the sup
port of any of them beyond age 21, you may use as
the date of termination of support of that child a
date which is earlier or later than 21 as you deem
proper.
As I stated before, it is the monetary value of
AB to each of the distributees that you must
decide. That value is incapable of exact proof. Tak
ing into account all the factors I have discussed,
you must use your own common sense and sound
judgment based on the evidence in deciding the
amount of the monetary loss suffered by each of
the distributees.
The amount you award for monetary losses
sustained by each of the distributees must repre
sent the full amount of such losses without reduc
tion to present value. You must also decide the pe
riod of years for which that amount i^intended to >
provide compensation.
You will make a separate award for tlpse rea
sonable expenses for AB’s funeral and burial lot
and those that were {[where appropriate] paid by the
spouse, for which the spouse is responsible) for
medical aid, nursing and other care required to
treat AB’s injuries.
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As to the claim for damages sustained by AB
before (he, she) died, which is the second claim I
mentioned to you earlier, plaintiff is entitled to re
cover such sum as you find will fairly and justly
compensate for AB’s pain and suffering during
such time as (he, she) was conscious from the mo
ment of injury to the moment of death. Conscious
pain and suffering means pain and suffering of
which there is some level of awareness by AB. In
addition, plaintiff is entitled to recover those rea
sonable expenses that were paid or incurred by
,(:j!^, AB’s estate) for medical aid, nursing and other
o^e required to treat AB’s injuries, and such
amount for loss of earnings as you find AB would
have earned between the date of injury and the
date of death had (he, she) not been injured.
[T/ie following should be charged when there is evi- ,
dence that the decedent experienced pre-impact terror, see
Caveat 3 below:] Plaintiff is also entitled to recover
the amount you find that will fairly and justly
compensate for the emotional pain and suffering
actually endured by AB between the moment AB
realized that (he, she) was going to be gravely
injured or die and the moment AB sustained a
physical injury. In order to find that plaintiff is
entitled to recover for these damages, you must
find that (a) AB was aware of the danger that
caused (his, her) grave injury or death, (b) AB was
aware of the likelihood of grave injury or death,
and (c) AB suffered emotional distress as a result
of (his, her) awareness of (his, her) impending
grave injury or death.
Your verdict will include answers to tjie fol
lowing questions, which w^l be submitted to j^u
in writing: > s*'
1. State the total amount of monetary loss. If
any, to each of [list the distributees by name] result
ing from AB’s death. For the children of AB this
monetary loss should include the deprivation of
the intellectual, moral and physical training and
education that AB would have given, [/n cases tried
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PJI 2:320 Pattern Jury Instructions
in the Second Department, consider stating in place of
the preceding sentence: State the total amount of monetary
loss, if any, to (list the distributees by name) resulting
from. AB’s death, without specifying the amount of
monetary loss for .each individual (see Caveat 2 below)].
2. For each person for whom an award is
made in your answer to Question No. 1, state the
period of years over which the amount awarded
for such monetary loss is intended to provide it
compensation [In cases tried in the Second Department,
it
consider omitting this question, see Caveat 2 below],
Cj
3. State the amount awarded, if any, for the ing spt
following items of damage incurred or paid by AB’s
spouse: Cj
amoun
(a) Medical expenses; Dunloj
Fourth
(b) Nursing and other expenses; nomic
Health
(c) Funeral expenses, including any burial lot. 2008),
it was
amoun'
4. State the amount awarded for the follow court a
ing items of damage sustained before AB’s death, if wrongf
any, incurred by AB prior to (his, her) death or for apporti
which AB’s estate is responsible [Only include items or Sun
that are supported by the evidence in the case before the the Sei
court]: verdict
award 1
(a) Medical expenses; Ca
the dec
(b) Nursing and other expenses; charge-
“pre-im;
(c) Dental expenses; sufferin
the deci
(d) Loss of earnings/Impairment of earning interva.
ability; resultii
sustaini
(e) Custodial care; Suffolk,
'r of 91st 1
(f) Rehabilitation services; (1st De]
NYSSdi
(g) Emotional pain and suffering AB endured is evidei
deceden'
between the moment AB realized that (he, injury o
she) was going to be gravely injured or die distress
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and the moment AB sustained a physical
injury;
r (h) Pain and suffering of AB from the moment
of physical injury to the moment of death;
I (i) Funeral expenses, including a burial lot.
I If you decide not to make an award as to any
? item, you will insert the word “none” as to that
item.
5 % Caveat 1: Where the distributees are persons other than the surviv-
’ ing spouse and children, the charge must be modified accordingly.
= Caveat 2: As a general rule, the jury should allocate the total
amount of economic loss among the distributees. In Huthmacher v
T Dunlop Tire Corp., 309 AD2d 1175, 765 NYS2d 111 (4th Dept 2003), the
f Fourth Department held that the jury must allocate the amount of eco-
s nomic loss among the distributees. However, in Carter v New York City
j Health and Hospitals Corp., 47 AD3d 661, 851 NYS2d 588 (2d Dept
2008), the Second Department stated, in what appears to be dicta, that
it was improper in a wrongful death case to ask the jury to itemize the
amount of economic loss to be awarded to each distributee. The Carter
court also stated that the jury’s role is limited to determining the total
wrongful death damages to be awarded to all distributees and that the
apportionment of the award among the distributees is for the Supreme
or Surrogate’s Court after a hearing. In light of Carter, courts within
the Second Department should consider modifying the charge and
f verdict sheet in wrongful death cases to require a single lump sum
I award to the distributees.
i Caveat 3: With respect to the compensable injuries sustained by
1 the decedent before he or she died—the plaintiffs second claim in the
I charge—the decedent’s estate may recover damages for the decedent’s
' “pre-impact terror” as an element of the decedent’s conscious pain and
suffering. Damages for pre-impact terror are designed to compensate
the decedent’s estate for the fear the decedent experienced during the
interval between the moment the decedent appreciated the danger
resulting in the decedent’s death and the moment^the decedent
sustained a physical injury as a result of the dangei^see Vatalaro v
Suffolk, 163 AD3d 893, 81 NYS3d 441 (2d Dept 2018) (citing PJI); Matter
of 91st Street Crane Collapse Litigation, 154 AD3d 139, 62 NYS3d 11
(1st Dept 2017) (citing PJI); McKenna v Reale, 137 AD3d 1533, 29
NYS3d 596 (3d Dept 2016). Such damages are appropriate where there
is evidence that the decedent was aware of the danger that caused the
decedent’s death, that the decedent was aware of the likelihood of grave
injury or impending death, and that the decedent suffered emotional
distress as a result of that awareness, Lang v Bouju, 245 AD2d 1000,
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PJI 2:320 Pattern Jury Instructions
667 NYS2d 440 (3d Dept 1997); see Keenan v Molloy, supra; Phiri v payments
Joseph, 32 AD3d 922, 822 NYS2d 573 (2d Dept 2006); Anderson v Rowe, CPLR 411
73 AD2d 1030, 425 NYS2d 180 (4th Dept 1980); see also this Comment,
infra. Care must be taken in preparing the charge to reflect the precise Age 2
conscious pain and suffering damages that the evidence supports, as has not b(
three possible scenarios exist: (1) the evidence supports an award only majority t
for pre-impact terror, (2) the evidence supports an award only for pain 2:317, stai
and suffering from the moment of physical injury to the moment of support oi
death, or (3) the evidence supports awards for both species of damages. yond, Hiri
As to ema
Caveat 4: The above pattern charge applies generally to all wrong imp airme:
except in 1
ful death actions. However, for actions based on medical, dental or tion betwi
podiatric malpractice commenced on or after July 26, 2003, the charge both as se
ni.ay be modifled to instruct the jury to reduce to present value the 573 NYS2
aw^d for future damages and to eliminate the instruction to specify
the period of years for which an award of future damages is intended to n.
provide compensation, see Comment to this charge, infra.
I. General Considerations In 19{
certain mi
The wrongful death charge contains instructions for the jury relat actions be
ing to two substantive claims: (1) the wrongful death cause of action 1986 the
itself, and (2) the survival action. The wrongful death cause of action, sentiaUy t
which is a creature of statute, provides a means of compensation to the overhaul 0
decedent’s distributees for the pecuniary injuries they suffered as a the Legisli
was a pro
result of the decedent’s death. The common law survival cause of action medical, d
is brought on behalf of the decedent’s estate to recover for the decedent’s posed to p
pre-death losses, including conscious pain and suffering and past lost Ni Christc
earnings. Both causes of action are brought by the decedent’s personal revisions t
representative for the beneflt of the distributees on the wrongful death and podial
cause of action and the estate on the survival action, Jordan v Metro No similar
politan Jewish Hospice, 122 AD3d 682, 995 NYS2d 610 (2d Dept 2014);
see Freeland v Erie, 122 AD3d 1348, 997 NYS2d 860 (4th Dept 2014). The 2t
anomalies,
EPTL 5-4.3 governs the amount of recovery for wrongful death; requiremei
EPTL 5-4.4 and EPTL 1-2.5 deflne the persons for whose beneflt the ac for medica
tion is brought. EPTL 11-3.3 deflnes what may be recovered in a sur sion in CP
vival action, including conscious pain and suffering. Pre-death loss of instructed
earnings, as well as medical, nursing and funeral expenses paid by the period
decedent or by the estate, or which are a charge agains^ the estate, are intended t
recoverable in the survival action, EPTL 11-3.3, but damages for future set forth t.
loss of earnings or loss of services ’are not, Huthmacher y^Dunlop Tire intended b
Corp., 309 AD2d 1175, 765 NYS2d 111 (4th Dept 2003).''Medical, nurs are award
ing and funeral expenses paid by the spouse or next of kin, 09- for which cases tried
such person is responsible are recoverable in the wrongful death action, Health ani
EPTL 5-4.3, but funeral expenses paid by a spouse in his or her capa 2008), stat
city as administrator of decedent’s estate are recoverable as an item of of economil
damages in the survival action, Montalvo v Chiaramonte, 74 AD3d 455,
902 NYS2d 520 (1st Dept 2010). To avoid a double recovery, the pattern Seconi
charge must be modifled to reflect who made or is responsible for these structured
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payments. Itemized verdicts are required in wrongful death actions,
CPLR 4111(e); this issue is discussed further in this Comment.
Age 21 is used in the pattern charge because the age for support
has not been reduced. While the legislature in 1974 lowered the age of
majority to 18, see Domestic Relations Law § 2; CPLR 105; see also PJI
2:317, statutory authority continues to make parents chargeable for the
support of their children to age 21, Family Court Act § 13, but not be
yond, Hirsch v Hirsch, 142 AD2d 138, 534 NYS2d 681 (2d Dept 1988).
As to emancipation, see PJI 2:317.1. As to “loss of earnings” and “future
impairment of earning ability” sustained by decedent prior to death,
except in the most unusual circumstances, there is little, if any, distinc
tion between the two items and, therefore, it is erroneous to identify
boti[i';^s separate items of damages, Taylor v Henderson, 175 AD2d 590,
573^MS2d 793 (4th Dept 1991).
II. Effect of Legislation Applicable to Certain Actions
Commenced on or After July 23, 2003
In 1985 the Legislature adopted CPLR article 50-A to require that
certain money judgments in medical, dental and podiatric malpractice
actions be paid over a period of time through “structured” plans. In
1986 the Legislature adopted CPLR article 50-B, which applied es
sentially the same requirements to most other tort actions. A significant
overhaul of the structured judgments provisions occurred in 2003, when
the Legislature revised CPLR article 50-A. Included among the changes
was a provision that all damages in wrongful death actions based on
medical, dental and podiatric malpractice be paid in a lump sum (as op
posed to payment in structured form), CPLR 5031(b); Toledo v Iglesia
Ni Christo, 18 NY3d 363, 939 NYS2d 282, 962 NE2d 773 (2012). The
revisions to CPLR article 50-A were made applicable to medical, dental
and podiatric malpractice actions commenced on or after July 26, 2003.
No similar revisions were made to CPLR article 50-B.
The 2003 revisions to CPLR article 50-A resulted in some seeming
anomalies. First, although the revisions made the structured judgment
requirements inapplicable to post-July 26, 2003 wrongful death actions
for medical, dental and podiatric malpractice, it did not alter the provi
sion in CPLR 4111(e) (former CPLR 4111(f)) requiring that the jury be
instructed that it must not only itemize the damages but also set forth
the period of years over which the amounts for future^damages are
intended to provide compensation. An instruction requiring the jury to
set forth the period of years for which its award of futureaJamages is
intended to compensate has no practical utility where future damages
are awarded in a lump sum and may be particularly problematic in
cases tried in the Second Department since Carter v New York City
Health and Hospitals Corp., 47 AD3d 661, 851 NYS2d 588 (2d Dept
2008), states that courts should not ask the jury to itemize the amount
of economic loss to be awarded to each distributee.
Second, the 2003 revisions to CPLR article 50-A altered the
structured judgment scheme applicable to actions involving medical.
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dental and podiatric malpractice by exempting awards for future dam
ages in wrongful death cases from the structuring requirements, CPLR
5031(d); Toledo v Iglesia Ni Christo, 18 NY3d 363, 939 NYS2d 282, 962
NE2d 773 (2012). Although CPLR 5031 as amended now requires future
damages to be awarded in a lump sum, that statute is silent on the
question whether the award should be reduced to its present value. If
there were no other relevant statutory provisions, the common-law ap
proach to that question would, presumably, be revived. Under the com
mon law, the parties could submit expert evidence "on the present-value
question, including evidence of the effects of inflation, and the jury
could return a verdict reflecting a reduction of its future-damages award
to its present value. However, the flnal sentence of CPLR 4111(e) (for
mer CPLR 4111(f)), which was not amended in 2003, still requires an
instruction that the jury must “award the full amount of future dam-
ages, as calculated, without reduction to present value,” see Toledo v
Iglesia Ni Christo, 18 NY3d 363, 939 NYS2d 282, 962 NE2d 773 (2012).
If, as the language suggests, that sentence is applicable to wrongful
death actions based on medical, dental and podiatric malpractice, then
any consideration of reduction to present value is precluded.
An alternative reading of CPLR-4111(e), which is suggested by
CPLR 41 Il’s respective subdivision headings as well as by the first
sentence of subdivision (e), is that CPLR 4111(d) is the exclusive govern
ing provision for medical, dental and podiatric malpractice actions.
Since CPLR 4111(d) contains no language prohibiting consideration of
present value, this alternative reading of the statute would permit
consideration of—and reduction to—the present value of a future
damages award.
The pattern charge, which is applicable generally to all wrongful
death actions, does not contain an instruction on reduction to present
value, and therefore reflects the flrst view of the statute discussed above.
In the absence of legislative clarification and in the absence of any ap
pellate case law on the issue of reduction to present value in actions
based on medical, dental or podiatric malpractice commenced on or af
ter July 23, 2003, the question of which interpretative approach should
be taken is one that trial courts will have to resolve as a matter of first
impression or the parties will resolve by agreement. Where the parties
have agreed or the court has determined that reduction to present value
is appropriate and where relevant expert testimony has been offered
the following charge may be utilized and inserted in place of the eighth
paragraph of the pattern charge: “ '
PJI 2:320.1
In determining the monetary loss sustained by
[list the distributees by name], you must also consider
the fact that a lump sum of money received today
is worth more than the same amount paid in
installments over a period of time, because the
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ire dam- lump sum can be invested to earn interest. Your
s, CPLR award is being made now, even though the earn
282, 962 ings from which AB would have contributed to the
3S future
t on the support of [Zis^ the distributees by name} would have
value. If been received in the future. For that reason, you
-law ap- must reduce the amount that you find that AB
fche com- would have contributed each year from (his, her)
nt-value earnings to the support of [list the distributees by
the jury
iS award name} to its present cash value in order to make al
L(e) (for- lowance for the earning power of the money.
uires an
re dam- You have heard testimony that will assist you
foledo V in deciding the present cash value of the money by
1 (2012). 5 determining a discount rate for each year and then
wrongful using that discount rate to deduct from your
ce, then
award a reasonable allowance for the earning
power of money. In determining what discount
isted by rate to use for each year, you must consider the
;he first rate of interest that is fairly to be expected from
govem- reasonably safe investments made by a person who
actions.
ation of does not have any special financial skill or
permit experience. On the other hand, you must also
future- consider that infiation may reduce the value of a
dollar in the future. For example, if I invest $1
irongful today, I will earn interest on that dollar but I will
present not actually come out ahead unless the interest
d above. rate that I earn is greater than the inflation rate.
any ap- Therefore the discount rate you use will be the
actions interest rate you selected as affected by the infla
in or af- tion rate you find appropriate.
i should
of first You must also decide the period of years for
parties which that amount is intended to provide
it value compensation.
offered
3 eighth III. Wrongful Death Actio^
A. Elements '
The cause of action authorized by EPTL 5-4.1 through 5-4.5 did not
by exist at common law, Gonzalez v New York City Housing Authority, 77
er NY2d 663, 569 NYS2d 915, 572 NE2d 598 (1991); Liff v Schildkrout, 49
NY2d 622, 427 NYS2d 746, 404 NE2d 1288 (1980); Langan v St.
ay Vincent’s Hosp, of New York, 25 AD3d 90, 802 NYS2d 476 (2d Dept
in 2005). The damages recoverable are limited to those allowed by statute,
he Farrar v Brooklyn Union Gas Co., 73 NY2d 802, 537 NYS2d 26, 533
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NE2d 1055 (1988); Smith v Lehigh Valley R. Co., 177 NY 379, 69 NE <1980); Sau
729 (1904); see Parilis v Feinstein, 49 NY2d 984, 429 NYS2d 165, 406 1997); see MoteL
NE2d 1059 (1980). The essential elements to be pleaded and proved in a (2d Dept 2012)
wrongful death action are: (1) a death; (2) caused by the wrongful act, (2014) (damages i
neglect or default of defendant; (3) giving rise to a cause of action that consoi*tiuin are n ।
could have been maintained, at the moment of death, by decedent if that the deceden
death had not ensued; (4) survival by distributees who have suffered the decedent sui
pecuniary loss by reason of the death; and (5) appointment of a personal 165, 406 NE2d K :
representative of decedent, EPTL 5-4.1; see Chong v New York City action cannot see
Transit Authority, 83 AD2d 546, 441 NYS2d 24 (2d Dept 1981); see also Sand V Chapin, s
Goldberg v Plaza Nursing Home Comp., Inc., 222 AD2d 1082, 635
NYS2d 841 (4th Dept 1995) (ovrld on other grounds. Doe v Westfall However, pec
Health Care Center, Inc., 303 AD2d 102, 755 NYS2d 769 (4th Dept care and loss of j
2002)). Kenavan v New
affd, 70 NY2d fii
B. Damages Recoverable
Berkowitz, 301 A
1. Pecuniary Injuries it is proper to ins
the intellectual, i
In a wrongful death action, an award of damages is limited to fair [the decedent] w
Kenavan v New "V
and just compensation for the pecuniary injuries resulting from the household duties
decedent’s death to the persons for whose benefit the action is brought, advice to their a
EPTL 5-4.3; Vargas v Crown Container Co., Inc., 155 AD3d 989, 65 sustain at least s(
NYS3d 567 (2d Dept 2017); see Johnson v Manhattan & Bronx Surface Inc., 116 AD2d 6c
Transit Operating Authority, 71 NY2d 198, 524 NYS2d 415, 519 NE2d that a deceased g
326 (1988); De Long v Erie, 60 NY2d 296, 469 NYS2d 611, 457 NE2d independent grai
717 (1983); Motelson v Ford Motor Co., 101 AD3d 957, 957 NYS2d 341 damages, Gonzale
(2d Dept 2012), affd, 24 NY3d 1025, 997 NYS2d 678, 22 NE3d 186 569 NYS2d 915, !
(2014); see also Hernandez v New York City Health and Hospitals Corp., sisted in the can
78 NY2d 687, 578 NYS2d 510, 585 NE2d 822 (1991). Such damages mother is sufficiei
include loss of support, voluntary assistance, and possible inheritance, York, 233 AD2d 5
as well as medical expenses incidental to death and funeral expenses, decedent regularh
Gonzalez v New York City Housing Authority, 77 NY2d 663, 569 NYS2d while she was on
915, 572 NE2d 598 (1991); Parilis v Feinstein, 49 NY2d 984, 429 NYS2d vices for the child
165, 406 NE2d 1059 (1980); McKenna v Reale, 137 AD3d 1533, 29 sustained pecuni,
NYS3d 596 (3d Dept 2016); Johnson v Richmond University Medical precluded summa:
Center, 101 AD3d 1087, 956 NYS2d 568 (2d Dept 2012); Motelson v siblings’ wrongfill
Ford Motor Company, supra; Sand v Chapin, 238 AD2d 862, 656 NYS2d Medical Center,
700 (3d Dept 1997); see Gardner v State, 134 AD3d 1563, 24 NYS3d 805 Recovery for pecm
(4th Dept 2015). To establish a right to a wrongful death recovery, the that the decedent
plaintiff need only show that one or more distributees had a re^onable babysat for her gr
expectation of support from the decedent and therefore a pecuniary loss, NYS2d 577 (4th 1
Zelizo V UUah, 2 AD3d 273, 769 NYS2d 255 (1st Dept 2003). Onc^at value of past and :
showing is made, the determination of the amount of damages is a ing the decedent’s
question for the jury, id. f 240 AD2d 635, 65
NY2d 296, 469 N^
Pecuniary injuries do not include sorrow or mental anguish. Smith a child for the de;
V Lehigh Valley R. Co., 177 NY 379, 69 NE 729 (1904), loss of child, if the jury is
companionship of a deceased child, Devito v Opatich, 215 AD2d 714, ity, Tilley v Hudsoi
627 NYS2d 441 (2d Dept 1995), or loss of companionship of a deceased can Airlines, Inc.
spouse, Liff V Schildkrout, 49 NY2d 622, 427 NYS2d 746, 404 NE2d However, adult chi
1044
FILED: RICHMOND COUNTY CLERK 11/13/2023 08:21 AM INDEX NO. 151120/2021
NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 11/13/2023
Negligence Actions PJI 2:320
1288 (1980); Sand v Chapin, 238 AD2d 862, 656 NYS2d 700 (3d Dept
1997); see Motelson v Ford Motor Co., 101 AD3d 957, 957 NYS2d 341
(2d Dept 2012), affd, 24 NY3d 1025, 997 NYS2d 678, 22 NE3d 186
(2014) (damages for loss, of society, affection, conjugal fellowship and
consortium are not recoverable). Nor does recovery include the damages
that the decedent might have obtained in a personal injury action had
the decedent survived, Parilis v Feinstein, 49 NY2d 984, 429 NYS2d
165, 406 NE2d 1059 (1980). Therefore, the plaintiff in a wrongful death
action cannot seek any recovery for decedent’s loss of enjoyment of life.
Sand V Chapin, supra.
However, pecuniary injuries do include loss of parental nurture and
care and loss of physical, moral and intellectual training by a parent,
Ken^Van v New York, 120 AD2d 24, 507 NYS2d 193 (2d Dept 1986),
affd,''^7b NY2d 558, 523 NYS2d 60, 517 NE2d 872 (1987); Zygmunt v
Berkowitz, 301 AD2d 593, 754 NYS2d 313
Preview
FILED: RICHMOND COUNTY CLERK 11/13/2023 08:21 AM INDEX NO. 151120/2021 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 11/13/2023 EXHIBIT “R” FILED: RICHMOND COUNTY CLERK 11/13/2023 08:21 AM INDEX NO. 151120/2021 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 11/13/2023 PJI 2:320 Pattern Jury Instructions 6. Action for Wrongful Death and Conscious Pain PJI 2:320. Damages—^Actions for Wrongful Death and Conscious Pain and Suffering As you have heard, the plaintiff, EF, is the rep resentative of the estate of AB. EF makes two claims: the first claim seeks damages on behalf of [Z^s^ distributees] resulting from the death of AB and the second claim seeks damages for the injuries suffered and losses sustained by AB before (he, she) died. You must separately consider each of these claims. As to the first claim, damages are the amount that you find to be fair and just compensation for the monetary losses resulting from AB’s death to each of the persons for whom this claim is brought. Those persons are: [list the distributees by name and state their relationship to decedent]. EF claims that these individuals have sus tained monetary loss as a result of AB’s death in that [state items of pecuniary loss claimed by plaintiff]. Defendant CD claims [state CD’s claims in relation to distributees’ alleged pecuniary loss]. The law limits damages resulting from AB’s death to monetary injuries. You may not consider or make any award for sorrow, mental anguish, injury to feelings, or for loss of companionship. You must decide the monetary losses to [list the dis tributees by name] caused by AB’s death on [give date of death]. In deciding the amount of monetary losses, you should consider the character, habits and ability of AB; the circumstances and condition of [list the distributees by name]; the services that AB would have performed for (him/ her, them); the portion of (his, her) earnings that AD would have spent in the future for the care and support of [list the distributees by name]; the age and life expectancy of AB; the ages and life expectancies of [Zisi the dis tributees by name]; and [where the distributees include children] the value of the intellectual, moral, and 1034 FILED: RICHMOND COUNTY CLERK 11/13/2023 08:21 AM INDEX NO. 151120/2021 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 11/13/2023 Negligence Actions PJI 2:320 physical training, guidance and assistance that AB would have given the children had (he, she) lived. You should also consider the amount, if any, by which AB, if (he, she) had lived, would have in creased (his, her) estate from (his, her) earnings and thus added to the amount that would have been inherited from (him, her), provide.d that you find that at least one of [list the distributees by name} would have been alive to inherit from'(him, her) had AB not died on [state date of death}. ab was, at the time of (his, her) death [state age} and, according to the life expectancy tables, '5' ' had a life expectancy of [state number of years}. (His, her) spouse was then [state age} and had a life ex pectancy of [state number of years}. The children were [state ages} and had life expectancies, respec tively of [sto^e number of years}. Life expectancy tables are simply statistical averages. A person might live longer or die sooner than the time indicated by those tables. The figures I just men tioned are not controlling but may be considered by you together with the evidence you heard concerning the health, habits, employment and activities of AB prior to (his, her) death and those of [list the distributees by name} in determining what their respective life expectancies were at the time AB died. You must decide what portion of (his, her) earnings AB would have spent for the care and support of [list the distributees by name}. In making your decision, you must consider: the amount AB earned per (week, month, year) prior to (his, her) death; the part of those earnings that AB contrib- uted to the care and support of each of the distrib- / utees and the pattern of those contributions; the position that AB had with (his, her) employer at the time that (he, she) died; (his, her) prospects for advancement and the probabilities with respect to (his, her) future earnings; the risks of (his, her) oc cupation; the condition of (his, her) health and the length of time that (he, she) would reasonably be expected to continue working. As to this last fac- 1035 FILED: RICHMOND COUNTY CLERK 11/13/2023 08:21 AM INDEX NO. 151120/2021 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 11/13/2023 PJI 2:320 Pattern Jury Instructions tor, the work expectancy of AB was, according to work expectancy tables, [stoie number of years]. That figure, like the life expectancy figures I mentioned earlier, is only a statistical average and is fur nished simply as a guide. In determining what por tion of (his, her) available earnings AB would have applied in the future to the care and support of (his, her) children, you should consider that AB was not legally obligated to contribute to the sup port of any child who became 21 years old. How ever, AB could have stopped supporting a child under 21 who [e.g., became self-supporting] or could have decided to continue to support a child who was older than 21. If, on the evidence, you deem it reasonably probable that any of the children would have [e.g., become self-supporting] prior to age 21, or that AB would have contributed to the sup port of any of them beyond age 21, you may use as the date of termination of support of that child a date which is earlier or later than 21 as you deem proper. As I stated before, it is the monetary value of AB to each of the distributees that you must decide. That value is incapable of exact proof. Tak ing into account all the factors I have discussed, you must use your own common sense and sound judgment based on the evidence in deciding the amount of the monetary loss suffered by each of the distributees. The amount you award for monetary losses sustained by each of the distributees must repre sent the full amount of such losses without reduc tion to present value. You must also decide the pe riod of years for which that amount i^intended to > provide compensation. You will make a separate award for tlpse rea sonable expenses for AB’s funeral and burial lot and those that were {[where appropriate] paid by the spouse, for which the spouse is responsible) for medical aid, nursing and other care required to treat AB’s injuries. 1036 FILED: RICHMOND COUNTY CLERK 11/13/2023 08:21 AM INDEX NO. 151120/2021 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 11/13/2023 Negligence Actions PJI 2:320 As to the claim for damages sustained by AB before (he, she) died, which is the second claim I mentioned to you earlier, plaintiff is entitled to re cover such sum as you find will fairly and justly compensate for AB’s pain and suffering during such time as (he, she) was conscious from the mo ment of injury to the moment of death. Conscious pain and suffering means pain and suffering of which there is some level of awareness by AB. In addition, plaintiff is entitled to recover those rea sonable expenses that were paid or incurred by ,(:j!^, AB’s estate) for medical aid, nursing and other o^e required to treat AB’s injuries, and such amount for loss of earnings as you find AB would have earned between the date of injury and the date of death had (he, she) not been injured. [T/ie following should be charged when there is evi- , dence that the decedent experienced pre-impact terror, see Caveat 3 below:] Plaintiff is also entitled to recover the amount you find that will fairly and justly compensate for the emotional pain and suffering actually endured by AB between the moment AB realized that (he, she) was going to be gravely injured or die and the moment AB sustained a physical injury. In order to find that plaintiff is entitled to recover for these damages, you must find that (a) AB was aware of the danger that caused (his, her) grave injury or death, (b) AB was aware of the likelihood of grave injury or death, and (c) AB suffered emotional distress as a result of (his, her) awareness of (his, her) impending grave injury or death. Your verdict will include answers to tjie fol lowing questions, which w^l be submitted to j^u in writing: > s*' 1. State the total amount of monetary loss. If any, to each of [list the distributees by name] result ing from AB’s death. For the children of AB this monetary loss should include the deprivation of the intellectual, moral and physical training and education that AB would have given, [/n cases tried 1037 FILED: RICHMOND COUNTY CLERK 11/13/2023 08:21 AM INDEX NO. 151120/2021 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 11/13/2023 PJI 2:320 Pattern Jury Instructions in the Second Department, consider stating in place of the preceding sentence: State the total amount of monetary loss, if any, to (list the distributees by name) resulting from. AB’s death, without specifying the amount of monetary loss for .each individual (see Caveat 2 below)]. 2. For each person for whom an award is made in your answer to Question No. 1, state the period of years over which the amount awarded for such monetary loss is intended to provide it compensation [In cases tried in the Second Department, it consider omitting this question, see Caveat 2 below], Cj 3. State the amount awarded, if any, for the ing spt following items of damage incurred or paid by AB’s spouse: Cj amoun (a) Medical expenses; Dunloj Fourth (b) Nursing and other expenses; nomic Health (c) Funeral expenses, including any burial lot. 2008), it was amoun' 4. State the amount awarded for the follow court a ing items of damage sustained before AB’s death, if wrongf any, incurred by AB prior to (his, her) death or for apporti which AB’s estate is responsible [Only include items or Sun that are supported by the evidence in the case before the the Sei court]: verdict award 1 (a) Medical expenses; Ca the dec (b) Nursing and other expenses; charge- “pre-im; (c) Dental expenses; sufferin the deci (d) Loss of earnings/Impairment of earning interva. ability; resultii sustaini (e) Custodial care; Suffolk, 'r of 91st 1 (f) Rehabilitation services; (1st De] NYSSdi (g) Emotional pain and suffering AB endured is evidei deceden' between the moment AB realized that (he, injury o she) was going to be gravely injured or die distress 1038 FILED: RICHMOND COUNTY CLERK 11/13/2023 08:21 AM INDEX NO. 151120/2021 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 11/13/2023 Negligence Actions PJI 2:320 and the moment AB sustained a physical injury; r (h) Pain and suffering of AB from the moment of physical injury to the moment of death; I (i) Funeral expenses, including a burial lot. I If you decide not to make an award as to any ? item, you will insert the word “none” as to that item. 5 % Caveat 1: Where the distributees are persons other than the surviv- ’ ing spouse and children, the charge must be modified accordingly. = Caveat 2: As a general rule, the jury should allocate the total amount of economic loss among the distributees. In Huthmacher v T Dunlop Tire Corp., 309 AD2d 1175, 765 NYS2d 111 (4th Dept 2003), the f Fourth Department held that the jury must allocate the amount of eco- s nomic loss among the distributees. However, in Carter v New York City j Health and Hospitals Corp., 47 AD3d 661, 851 NYS2d 588 (2d Dept 2008), the Second Department stated, in what appears to be dicta, that it was improper in a wrongful death case to ask the jury to itemize the amount of economic loss to be awarded to each distributee. The Carter court also stated that the jury’s role is limited to determining the total wrongful death damages to be awarded to all distributees and that the apportionment of the award among the distributees is for the Supreme or Surrogate’s Court after a hearing. In light of Carter, courts within the Second Department should consider modifying the charge and f verdict sheet in wrongful death cases to require a single lump sum I award to the distributees. i Caveat 3: With respect to the compensable injuries sustained by 1 the decedent before he or she died—the plaintiffs second claim in the I charge—the decedent’s estate may recover damages for the decedent’s ' “pre-impact terror” as an element of the decedent’s conscious pain and suffering. Damages for pre-impact terror are designed to compensate the decedent’s estate for the fear the decedent experienced during the interval between the moment the decedent appreciated the danger resulting in the decedent’s death and the moment^the decedent sustained a physical injury as a result of the dangei^see Vatalaro v Suffolk, 163 AD3d 893, 81 NYS3d 441 (2d Dept 2018) (citing PJI); Matter of 91st Street Crane Collapse Litigation, 154 AD3d 139, 62 NYS3d 11 (1st Dept 2017) (citing PJI); McKenna v Reale, 137 AD3d 1533, 29 NYS3d 596 (3d Dept 2016). Such damages are appropriate where there is evidence that the decedent was aware of the danger that caused the decedent’s death, that the decedent was aware of the likelihood of grave injury or impending death, and that the decedent suffered emotional distress as a result of that awareness, Lang v Bouju, 245 AD2d 1000, 1039 FILED: RICHMOND COUNTY CLERK 11/13/2023 08:21 AM INDEX NO. 151120/2021 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 11/13/2023 PJI 2:320 Pattern Jury Instructions 667 NYS2d 440 (3d Dept 1997); see Keenan v Molloy, supra; Phiri v payments Joseph, 32 AD3d 922, 822 NYS2d 573 (2d Dept 2006); Anderson v Rowe, CPLR 411 73 AD2d 1030, 425 NYS2d 180 (4th Dept 1980); see also this Comment, infra. Care must be taken in preparing the charge to reflect the precise Age 2 conscious pain and suffering damages that the evidence supports, as has not b( three possible scenarios exist: (1) the evidence supports an award only majority t for pre-impact terror, (2) the evidence supports an award only for pain 2:317, stai and suffering from the moment of physical injury to the moment of support oi death, or (3) the evidence supports awards for both species of damages. yond, Hiri As to ema Caveat 4: The above pattern charge applies generally to all wrong imp airme: except in 1 ful death actions. However, for actions based on medical, dental or tion betwi podiatric malpractice commenced on or after July 26, 2003, the charge both as se ni.ay be modifled to instruct the jury to reduce to present value the 573 NYS2 aw^d for future damages and to eliminate the instruction to specify the period of years for which an award of future damages is intended to n. provide compensation, see Comment to this charge, infra. I. General Considerations In 19{ certain mi The wrongful death charge contains instructions for the jury relat actions be ing to two substantive claims: (1) the wrongful death cause of action 1986 the itself, and (2) the survival action. The wrongful death cause of action, sentiaUy t which is a creature of statute, provides a means of compensation to the overhaul 0 decedent’s distributees for the pecuniary injuries they suffered as a the Legisli was a pro result of the decedent’s death. The common law survival cause of action medical, d is brought on behalf of the decedent’s estate to recover for the decedent’s posed to p pre-death losses, including conscious pain and suffering and past lost Ni Christc earnings. Both causes of action are brought by the decedent’s personal revisions t representative for the beneflt of the distributees on the wrongful death and podial cause of action and the estate on the survival action, Jordan v Metro No similar politan Jewish Hospice, 122 AD3d 682, 995 NYS2d 610 (2d Dept 2014); see Freeland v Erie, 122 AD3d 1348, 997 NYS2d 860 (4th Dept 2014). The 2t anomalies, EPTL 5-4.3 governs the amount of recovery for wrongful death; requiremei EPTL 5-4.4 and EPTL 1-2.5 deflne the persons for whose beneflt the ac for medica tion is brought. EPTL 11-3.3 deflnes what may be recovered in a sur sion in CP vival action, including conscious pain and suffering. Pre-death loss of instructed earnings, as well as medical, nursing and funeral expenses paid by the period decedent or by the estate, or which are a charge agains^ the estate, are intended t recoverable in the survival action, EPTL 11-3.3, but damages for future set forth t. loss of earnings or loss of services ’are not, Huthmacher y^Dunlop Tire intended b Corp., 309 AD2d 1175, 765 NYS2d 111 (4th Dept 2003).''Medical, nurs are award ing and funeral expenses paid by the spouse or next of kin, 09- for which cases tried such person is responsible are recoverable in the wrongful death action, Health ani EPTL 5-4.3, but funeral expenses paid by a spouse in his or her capa 2008), stat city as administrator of decedent’s estate are recoverable as an item of of economil damages in the survival action, Montalvo v Chiaramonte, 74 AD3d 455, 902 NYS2d 520 (1st Dept 2010). To avoid a double recovery, the pattern Seconi charge must be modifled to reflect who made or is responsible for these structured 1040 FILED: RICHMOND COUNTY CLERK 11/13/2023 08:21 AM INDEX NO. 151120/2021 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 11/13/2023 Negligence Actions PJI 2:320 payments. Itemized verdicts are required in wrongful death actions, CPLR 4111(e); this issue is discussed further in this Comment. Age 21 is used in the pattern charge because the age for support has not been reduced. While the legislature in 1974 lowered the age of majority to 18, see Domestic Relations Law § 2; CPLR 105; see also PJI 2:317, statutory authority continues to make parents chargeable for the support of their children to age 21, Family Court Act § 13, but not be yond, Hirsch v Hirsch, 142 AD2d 138, 534 NYS2d 681 (2d Dept 1988). As to emancipation, see PJI 2:317.1. As to “loss of earnings” and “future impairment of earning ability” sustained by decedent prior to death, except in the most unusual circumstances, there is little, if any, distinc tion between the two items and, therefore, it is erroneous to identify boti[i';^s separate items of damages, Taylor v Henderson, 175 AD2d 590, 573^MS2d 793 (4th Dept 1991). II. Effect of Legislation Applicable to Certain Actions Commenced on or After July 23, 2003 In 1985 the Legislature adopted CPLR article 50-A to require that certain money judgments in medical, dental and podiatric malpractice actions be paid over a period of time through “structured” plans. In 1986 the Legislature adopted CPLR article 50-B, which applied es sentially the same requirements to most other tort actions. A significant overhaul of the structured judgments provisions occurred in 2003, when the Legislature revised CPLR article 50-A. Included among the changes was a provision that all damages in wrongful death actions based on medical, dental and podiatric malpractice be paid in a lump sum (as op posed to payment in structured form), CPLR 5031(b); Toledo v Iglesia Ni Christo, 18 NY3d 363, 939 NYS2d 282, 962 NE2d 773 (2012). The revisions to CPLR article 50-A were made applicable to medical, dental and podiatric malpractice actions commenced on or after July 26, 2003. No similar revisions were made to CPLR article 50-B. The 2003 revisions to CPLR article 50-A resulted in some seeming anomalies. First, although the revisions made the structured judgment requirements inapplicable to post-July 26, 2003 wrongful death actions for medical, dental and podiatric malpractice, it did not alter the provi sion in CPLR 4111(e) (former CPLR 4111(f)) requiring that the jury be instructed that it must not only itemize the damages but also set forth the period of years over which the amounts for future^damages are intended to provide compensation. An instruction requiring the jury to set forth the period of years for which its award of futureaJamages is intended to compensate has no practical utility where future damages are awarded in a lump sum and may be particularly problematic in cases tried in the Second Department since Carter v New York City Health and Hospitals Corp., 47 AD3d 661, 851 NYS2d 588 (2d Dept 2008), states that courts should not ask the jury to itemize the amount of economic loss to be awarded to each distributee. Second, the 2003 revisions to CPLR article 50-A altered the structured judgment scheme applicable to actions involving medical. FILED: RICHMOND COUNTY CLERK 11/13/2023 08:21 AM INDEX NO. 151120/2021 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 11/13/2023 PJI 2:320 Pattern Jury Instructions dental and podiatric malpractice by exempting awards for future dam ages in wrongful death cases from the structuring requirements, CPLR 5031(d); Toledo v Iglesia Ni Christo, 18 NY3d 363, 939 NYS2d 282, 962 NE2d 773 (2012). Although CPLR 5031 as amended now requires future damages to be awarded in a lump sum, that statute is silent on the question whether the award should be reduced to its present value. If there were no other relevant statutory provisions, the common-law ap proach to that question would, presumably, be revived. Under the com mon law, the parties could submit expert evidence "on the present-value question, including evidence of the effects of inflation, and the jury could return a verdict reflecting a reduction of its future-damages award to its present value. However, the flnal sentence of CPLR 4111(e) (for mer CPLR 4111(f)), which was not amended in 2003, still requires an instruction that the jury must “award the full amount of future dam- ages, as calculated, without reduction to present value,” see Toledo v Iglesia Ni Christo, 18 NY3d 363, 939 NYS2d 282, 962 NE2d 773 (2012). If, as the language suggests, that sentence is applicable to wrongful death actions based on medical, dental and podiatric malpractice, then any consideration of reduction to present value is precluded. An alternative reading of CPLR-4111(e), which is suggested by CPLR 41 Il’s respective subdivision headings as well as by the first sentence of subdivision (e), is that CPLR 4111(d) is the exclusive govern ing provision for medical, dental and podiatric malpractice actions. Since CPLR 4111(d) contains no language prohibiting consideration of present value, this alternative reading of the statute would permit consideration of—and reduction to—the present value of a future damages award. The pattern charge, which is applicable generally to all wrongful death actions, does not contain an instruction on reduction to present value, and therefore reflects the flrst view of the statute discussed above. In the absence of legislative clarification and in the absence of any ap pellate case law on the issue of reduction to present value in actions based on medical, dental or podiatric malpractice commenced on or af ter July 23, 2003, the question of which interpretative approach should be taken is one that trial courts will have to resolve as a matter of first impression or the parties will resolve by agreement. Where the parties have agreed or the court has determined that reduction to present value is appropriate and where relevant expert testimony has been offered the following charge may be utilized and inserted in place of the eighth paragraph of the pattern charge: “ ' PJI 2:320.1 In determining the monetary loss sustained by [list the distributees by name], you must also consider the fact that a lump sum of money received today is worth more than the same amount paid in installments over a period of time, because the 1042 FILED: RICHMOND COUNTY CLERK 11/13/2023 08:21 AM INDEX NO. 151120/2021 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 11/13/2023 Negligence Actions PJI 2:320 ire dam- lump sum can be invested to earn interest. Your s, CPLR award is being made now, even though the earn 282, 962 ings from which AB would have contributed to the 3S future t on the support of [Zis^ the distributees by name} would have value. If been received in the future. For that reason, you -law ap- must reduce the amount that you find that AB fche com- would have contributed each year from (his, her) nt-value earnings to the support of [list the distributees by the jury iS award name} to its present cash value in order to make al L(e) (for- lowance for the earning power of the money. uires an re dam- You have heard testimony that will assist you foledo V in deciding the present cash value of the money by 1 (2012). 5 determining a discount rate for each year and then wrongful using that discount rate to deduct from your ce, then award a reasonable allowance for the earning power of money. In determining what discount isted by rate to use for each year, you must consider the ;he first rate of interest that is fairly to be expected from govem- reasonably safe investments made by a person who actions. ation of does not have any special financial skill or permit experience. On the other hand, you must also future- consider that infiation may reduce the value of a dollar in the future. For example, if I invest $1 irongful today, I will earn interest on that dollar but I will present not actually come out ahead unless the interest d above. rate that I earn is greater than the inflation rate. any ap- Therefore the discount rate you use will be the actions interest rate you selected as affected by the infla in or af- tion rate you find appropriate. i should of first You must also decide the period of years for parties which that amount is intended to provide it value compensation. offered 3 eighth III. Wrongful Death Actio^ A. Elements ' The cause of action authorized by EPTL 5-4.1 through 5-4.5 did not by exist at common law, Gonzalez v New York City Housing Authority, 77 er NY2d 663, 569 NYS2d 915, 572 NE2d 598 (1991); Liff v Schildkrout, 49 NY2d 622, 427 NYS2d 746, 404 NE2d 1288 (1980); Langan v St. ay Vincent’s Hosp, of New York, 25 AD3d 90, 802 NYS2d 476 (2d Dept in 2005). The damages recoverable are limited to those allowed by statute, he Farrar v Brooklyn Union Gas Co., 73 NY2d 802, 537 NYS2d 26, 533 1043 FILED: RICHMOND COUNTY CLERK 11/13/2023 08:21 AM INDEX NO. 151120/2021 NYSCEF DOC. NO. 123 RECEIVED F NYSCEF: 11/13/2023 PJI 2:320 Pattern Jury Instructions NE2d 1055 (1988); Smith v Lehigh Valley R. Co., 177 NY 379, 69 NE <1980); Sau 729 (1904); see Parilis v Feinstein, 49 NY2d 984, 429 NYS2d 165, 406 1997); see MoteL NE2d 1059 (1980). The essential elements to be pleaded and proved in a (2d Dept 2012) wrongful death action are: (1) a death; (2) caused by the wrongful act, (2014) (damages i neglect or default of defendant; (3) giving rise to a cause of action that consoi*tiuin are n । could have been maintained, at the moment of death, by decedent if that the deceden death had not ensued; (4) survival by distributees who have suffered the decedent sui pecuniary loss by reason of the death; and (5) appointment of a personal 165, 406 NE2d K : representative of decedent, EPTL 5-4.1; see Chong v New York City action cannot see Transit Authority, 83 AD2d 546, 441 NYS2d 24 (2d Dept 1981); see also Sand V Chapin, s Goldberg v Plaza Nursing Home Comp., Inc., 222 AD2d 1082, 635 NYS2d 841 (4th Dept 1995) (ovrld on other grounds. Doe v Westfall However, pec Health Care Center, Inc., 303 AD2d 102, 755 NYS2d 769 (4th Dept care and loss of j 2002)). Kenavan v New affd, 70 NY2d fii B. Damages Recoverable Berkowitz, 301 A 1. Pecuniary Injuries it is proper to ins the intellectual, i In a wrongful death action, an award of damages is limited to fair [the decedent] w Kenavan v New "V and just compensation for the pecuniary injuries resulting from the household duties decedent’s death to the persons for whose benefit the action is brought, advice to their a EPTL 5-4.3; Vargas v Crown Container Co., Inc., 155 AD3d 989, 65 sustain at least s( NYS3d 567 (2d Dept 2017); see Johnson v Manhattan & Bronx Surface Inc., 116 AD2d 6c Transit Operating Authority, 71 NY2d 198, 524 NYS2d 415, 519 NE2d that a deceased g 326 (1988); De Long v Erie, 60 NY2d 296, 469 NYS2d 611, 457 NE2d independent grai 717 (1983); Motelson v Ford Motor Co., 101 AD3d 957, 957 NYS2d 341 damages, Gonzale (2d Dept 2012), affd, 24 NY3d 1025, 997 NYS2d 678, 22 NE3d 186 569 NYS2d 915, ! (2014); see also Hernandez v New York City Health and Hospitals Corp., sisted in the can 78 NY2d 687, 578 NYS2d 510, 585 NE2d 822 (1991). Such damages mother is sufficiei include loss of support, voluntary assistance, and possible inheritance, York, 233 AD2d 5 as well as medical expenses incidental to death and funeral expenses, decedent regularh Gonzalez v New York City Housing Authority, 77 NY2d 663, 569 NYS2d while she was on 915, 572 NE2d 598 (1991); Parilis v Feinstein, 49 NY2d 984, 429 NYS2d vices for the child 165, 406 NE2d 1059 (1980); McKenna v Reale, 137 AD3d 1533, 29 sustained pecuni, NYS3d 596 (3d Dept 2016); Johnson v Richmond University Medical precluded summa: Center, 101 AD3d 1087, 956 NYS2d 568 (2d Dept 2012); Motelson v siblings’ wrongfill Ford Motor Company, supra; Sand v Chapin, 238 AD2d 862, 656 NYS2d Medical Center, 700 (3d Dept 1997); see Gardner v State, 134 AD3d 1563, 24 NYS3d 805 Recovery for pecm (4th Dept 2015). To establish a right to a wrongful death recovery, the that the decedent plaintiff need only show that one or more distributees had a re^onable babysat for her gr expectation of support from the decedent and therefore a pecuniary loss, NYS2d 577 (4th 1 Zelizo V UUah, 2 AD3d 273, 769 NYS2d 255 (1st Dept 2003). Onc^at value of past and : showing is made, the determination of the amount of damages is a ing the decedent’s question for the jury, id. f 240 AD2d 635, 65 NY2d 296, 469 N^ Pecuniary injuries do not include sorrow or mental anguish. Smith a child for the de; V Lehigh Valley R. Co., 177 NY 379, 69 NE 729 (1904), loss of child, if the jury is companionship of a deceased child, Devito v Opatich, 215 AD2d 714, ity, Tilley v Hudsoi 627 NYS2d 441 (2d Dept 1995), or loss of companionship of a deceased can Airlines, Inc. spouse, Liff V Schildkrout, 49 NY2d 622, 427 NYS2d 746, 404 NE2d However, adult chi 1044 FILED: RICHMOND COUNTY CLERK 11/13/2023 08:21 AM INDEX NO. 151120/2021 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 11/13/2023 Negligence Actions PJI 2:320 1288 (1980); Sand v Chapin, 238 AD2d 862, 656 NYS2d 700 (3d Dept 1997); see Motelson v Ford Motor Co., 101 AD3d 957, 957 NYS2d 341 (2d Dept 2012), affd, 24 NY3d 1025, 997 NYS2d 678, 22 NE3d 186 (2014) (damages for loss, of society, affection, conjugal fellowship and consortium are not recoverable). Nor does recovery include the damages that the decedent might have obtained in a personal injury action had the decedent survived, Parilis v Feinstein, 49 NY2d 984, 429 NYS2d 165, 406 NE2d 1059 (1980). Therefore, the plaintiff in a wrongful death action cannot seek any recovery for decedent’s loss of enjoyment of life. Sand V Chapin, supra. However, pecuniary injuries do include loss of parental nurture and care and loss of physical, moral and intellectual training by a parent, Ken^Van v New York, 120 AD2d 24, 507 NYS2d 193 (2d Dept 1986), affd,''^7b NY2d 558, 523 NYS2d 60, 517 NE2d 872 (1987); Zygmunt v Berkowitz, 301 AD2d 593, 754 NYS2d 313