Summary
In Shearer v Mooney (109 A.D.2d 1104 [4th Dept 1985]) the court, in ruling that it was improper in a legal malpractice action, where no physical or mental injury was asserted, to allow the complaint to be amended to add a cause of action for "loss of consortium" stated that "[a] cause of action for loss of services and society of a spouse is predicated upon physical or mental injury or incapacity of that spouse".
Summary of this case from Delosovic v. City of New YorkOpinion
March 1, 1985
Appeal from the Supreme Court, Monroe County, Bergin, J.
Present — Dillon, P.J., Denman, Boomer and O'Donnell, JJ.
Order unanimously reversed, on the law, with costs, and motion denied. Memorandum: A cause of action for loss of services and society of a spouse is predicated upon physical or mental injury or incapacity of that spouse ( see, Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 504; 15 N.Y. Jur, Domestic Relations, § 302 [rev ed]; Prosser and Keeton, Torts § 125, at 932 [5th ed 1984]; Restatement [Second] of Torts § 693 [1977]). In this legal malpractice action there is no allegation of physical or mental injury or incapacity inflicted upon either spouse; hence, Special Term should not have granted permission to amend the complaint to add the cause of action for loss of consortium.