Opinion
# 2016-018-710 Claim No. 127053 Motion No. M-87925
03-24-2016
ADAM CORTRIGHT, Individually, and as Parent and Natural Guardian of MC, an Infant, and as Administrator of the Estate of AMANDA LYNN BUSH v. STATE OF NEW YORK
SUGARMAN LAW FIRM, LLP By: Sam A. Elbadawi, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Edward F. McArdle, Esquire Assistant Attorney General
Synopsis
Defendant's motion is granted as Claimant has no individual cause of action for Ms. Bush's death (see EPTL ? 5-4.4 [a] and 5-4.3.
Case information
| UID: | 2016-018-710 |
| Claimant(s): | ADAM CORTRIGHT, Individually, and as Parent and Natural Guardian of MC, an Infant, and as Administrator of the Estate of AMANDA LYNN BUSH |
| Claimant short name: | Cortright |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | Claimant failed to name "State of New York" as Defendant in the caption of the claim. Defendant added "State of New York" to the caption in its answer and the State of New York is the proper defendant, and there is no objection to the manner of service. The Court has, accordingly, sua sponte amended the caption (see Matter of Great E. Mall, v Condon, 36 NY2d 544 [1975]). |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127053 |
| Motion number(s): | M-87925 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | SUGARMAN LAW FIRM, LLP By: Sam A. Elbadawi, Esquire |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Edward F. McArdle, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 24, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brought a motion to dismiss the individual claim of Adam Cortright pursuant to CPLR 3211 (a) (5) and (7) and Court of Claims Act section 10 (3). Claimant opposes the motion.
On January 5, 2015, a "Notice of Intention to File Claim" was personally served upon the Attorney General's office. A claim was personally served on the same day. The claim alleges that on June 20, 2014, Amanda Lynn Bush was working at a restaurant on East State Street in Ithaca when a tractor trailer crashed into the restaurant causing her fatal injuries. Ms. Bush and Claimant had an infant daughter. On October 21, 2014, Mr. Cortright was appointed administrator of the estate of Ms. Bush. Mr. Cortright is suing as the administrator of Ms. Bush's estate and individually for emotional distress, loss of society, financial support, comfort and companionship. He also seeks damages on an individual cause of action for the loss of his unborn child. Ms. Bush was pregnant at the time of her death.
Defendant seeks to dismiss any cause of action for Mr. Cortright, individually, alleging Mr. Cortright and Ms. Bush were not married. Claimant's opposition does not provide any evidence of marriage nor does the attorney's affirmation dispute Defendant's assertion. In fact, the opposition documents do not actually oppose dismissing Mr. Cortright's individual causes of action.
The motion is GRANTED as Claimant has no individual cause of action for Ms. Bush's death (see EPTL ? 5-4.4 [a] and 5-4.3; Langan v St. Vincent's Hosp. of New York, 25 AD3d 90 [2d Dept 2005] [unmarried party cannot recover for wrongful death]; Howell v New York Post Co., 81 NY2d 115 [1993] [unmet elements for intentional infliction of emotional distress]; Boxsun v Sanperi, 61 NY2d 219 91984] [negligent infliction of emotional distress for loss or injury to relative must be in zone of danger]; Endrez v Friedberg, 24 NY2d 478 [1969] [no wrongful death cause of action for death of unborn child]).
Accordingly, all of Adam Cortright's individual causes of action are DISMISSED, and the caption of the claim shall be so amended.
March 24, 2016
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) Affirmation of Edward F. McArdle, Esquire, Assistant Attorney General, in support with exhibits attached thereto. 3) Affirmation of Sam A. Elbadawi, Esquire, in opposition.