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Finney v. Morton

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Mar 13, 2019
170 A.D.3d 811 (N.Y. App. Div. 2019)

Opinion

2016–05498 Index No. 4654/13

03-13-2019

Amy FINNEY, etc., Respondent, v. Christopher A. MORTON, Jr., Appellant.

Pillinger Miller Tarallo, LLP, Elmsford, N.Y. (Daniel O. Dietchweiler of counsel), for appellant. Gregory W. Bagen, Brewster, NY, for respondent.


Pillinger Miller Tarallo, LLP, Elmsford, N.Y. (Daniel O. Dietchweiler of counsel), for appellant.

Gregory W. Bagen, Brewster, NY, for respondent.

WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.

DECISION & ORDER ORDERED that the judgment is reversed, on the facts, that branch of the defendant's motion pursuant to CPLR 4404(b) which was to set side so much of the decision as determined that the plaintiff was entitled to awards of damages for past and future loss of household services is granted, the order dated April 4, 2016, is modified accordingly, and the matter is remitted to the Supreme Court, Dutchess County, for a recalculation of the damages awarded for past lost earnings, future lost earnings, and future lost benefits, based upon an apportionment of 85% of the fault in the happening of the accident to the defendant and 15% of the fault to the decedent, and the entry of an appropriate amended judgment thereafter.

On August 26, 2012, the decedent and his friend were riding their motorcycles in the northbound lane on Route 414 in the Town of Hector. The defendant was driving his pickup truck approximately two car lengths behind the decedent at a speed of 55 miles per hour. The decedent thereafter sustained fatal injuries when his motorcycle was struck by the defendant's vehicle. The plaintiff, the decedent's wife and administrator of his estate, commenced this action, inter alia, to recover damages for wrongful death. After a nonjury trial, the Supreme Court rendered a verdict finding, among other things, that the defendant was 95% at fault in the happening of the accident and that the decedent was 5% at fault, and awarding damages to the plaintiff in the principal sums of $108,364.60 for past lost earnings, $904,021.90 for future lost earnings, $15,200 for past loss of household services, $336,070.10 for future loss of household services, and $82,877.05 for future lost benefits. The defendant moved pursuant to CPLR 4404(b), inter alia, to set aside so much of the verdict as awarded damages for past and future loss of household services. The Supreme Court denied that branch of the defendant's motion in an order dated April 4, 2016, and a judgment was entered in favor of the plaintiff. The defendant appeals.

"Where, as here, a case is tried without a jury, this Court's authority is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, ‘taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses’ and hearing the testimony" ( West St. Props., LLC v. American States Ins. Co., 150 A.D.3d 792, 794, 53 N.Y.S.3d 674, quoting Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 [internal quotation marks omitted]; see Domanova v. State of New York, 41 A.D.3d 633, 634, 838 N.Y.S.2d 644 ; Letterese v. State of New York, 33 A.D.3d 593, 593, 821 N.Y.S.2d 468 ).

Here, the Supreme Court's determination that the defendant was 95% at fault in the happening of the accident was not warranted by the facts. "A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle" ( Niyazov v. Hunter EMS, Inc., 154 A.D.3d 954, 954, 63 N.Y.S.3d 457 [internal quotation marks omitted]; see Vehicle and Traffic Law § 1129[a] ; Nsiah–Ababio v. Hunter, 78 A.D.3d 672, 672, 913 N.Y.S.2d 659 ). Since there was ample evidence presented at trial demonstrating that the defendant failed to maintain a safe following distance under the prevailing conditions in violation of Vehicle and Traffic Law § 1129(a), we agree with the court's determination that the defendant's negligence was a substantial factor in the happening of the accident. However, the trial evidence, including the testimony of a New York State trooper who witnessed the accident, established that immediately before the collision, the decedent abruptly veered to the left toward the center line of the road and stopped his motorcycle ahead of the defendant's vehicle in the lane of travel. While we agree that the decedent's negligent conduct also constituted a proximate cause in the happening of the accident, we disagree with the court's apportionment of liability of only 5% to the decedent. Under the circumstances, and considering the negligence of both parties involved in the accident, we determine that the record warrants an apportionment of 85% of the fault to the defendant, and 15% of the fault to the decedent (see generally Robinson v. Brooklyn Union Gas Co., 160 A.D.3d 999, 1001, 72 N.Y.S.3d 454 ; Loja v. Lavelle, 132 A.D.3d 637, 640, 17 N.Y.S.3d 483 ; DiDonna v. Houck, 111 A.D.3d 662, 664, 974 N.Y.S.2d 550 ). Accordingly, we remit the matter to the Supreme Court, Dutchess County, for a recalculation of the damages awarded for past lost earnings, future lost earnings, and future lost benefits, and the entry of an appropriate amended judgment thereafter.

The evidence adduced at trial failed to support the awards of damages for past and future loss of household services (see Schultz v. Harrison Radiator Div. Gen. Motors Corp., 90 N.Y.2d 311, 320–321, 660 N.Y.S.2d 685, 683 N.E.2d 307 ; Hyung Kee Lee v. New York Hosp. Queens, 118 A.D.3d 750, 754, 987 N.Y.S.2d 436 ; Merola v. Catholic Med. Ctr. of Brooklyn & Queens, Inc., 24 A.D.3d 629, 631, 808 N.Y.S.2d 395 ). "Future damages for the loss of household services is a quantitative economic loss separate and apart from pain and suffering" ( Kihl v. Pfeffer, 47 A.D.3d 154, 161, 848 N.Y.S.2d 200 ). "[T]he standard by which to measure the value of past and future loss of household services is the cost of replacing the decedent's services" ( Klos v. New York City Tr. Auth., 240 A.D.2d 635, 637, 659 N.Y.S.2d 97 ; see Hyung Kee Lee v. New York Hosp. Queens, 118 A.D.3d at 754–755, 987 N.Y.S.2d 436 ; Kastick v. U–Haul Co. of W. Mich., 292 A.D.2d 797, 799, 740 N.Y.S.2d 167 ). "[F]uture damages for loss of household services should be awarded only for those services which are reasonably certain to be incurred and necessitated by [the decedent's death]" ( Schultz v. Harrison Radiator Div. Gen. Motors Corp., 90 N.Y.2d at 320–321, 660 N.Y.S.2d 685, 683 N.E.2d 307 ). "[T]he calculation of those damages ‘does not require absolute certainty.... The law ... requires only that [they] be capable of measurement based upon known reliable factors without undue speculation’ " ( Presler v. Compson Tennis Club Assoc., 27 A.D.3d 1096, 1097, 815 N.Y.S.2d 367, quoting Ashland Mgt. v. Janien, 82 N.Y.2d 395, 403, 604 N.Y.S.2d 912, 624 N.E.2d 1007 ).

Here, although the plaintiff's expert economist valued the loss of the decedent's household services based on a statistical average of services performed in a two-person household, there was no evidence in the record as to the nature and frequency of any services actually performed by the decedent prior to his death. Rather, the record was silent on this issue. In addition, there was no evidence of actual expenditures incurred in replacing whatever household services the decedent may have performed in the past, or of any anticipated future expenditures with regard to such services. Accordingly, the plaintiff should not have been awarded damages for past and future loss of household services since, in the absence of any evidence establishing what services the decedent actually performed, those awards were speculative and were not warranted by the facts.

MASTRO, J.P., COHEN, MALTESE and CHRISTOPHER, JJ., concur.


Summaries of

Finney v. Morton

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Mar 13, 2019
170 A.D.3d 811 (N.Y. App. Div. 2019)
Case details for

Finney v. Morton

Case Details

Full title:Amy Finney, etc., respondent, v. Christopher A. Morton, Jr., appellant.

Court:SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Mar 13, 2019

Citations

170 A.D.3d 811 (N.Y. App. Div. 2019)
95 N.Y.S.3d 566
2019 N.Y. Slip Op. 1744

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