Opinion
Argued October 29, 2001.
November 13, 2001.
In an action to recover damages for personal injuries, etc., the plaintiff Max Reiser appeals from so much of a judgment of the Supreme Court, Kings County (Rappaport, J.), entered April 5, 2001, as dismissed his derivative cause of action to recover damages for loss of services.
Herschel Kulefsky, New York, N.Y. (Ephrem Wertenteil of counsel), for appellant.
Hoey, King, Toker Epstein, New York, N.Y. (Denise A. Cariello of counsel), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN, HOWARD MILLER, JJ.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The Supreme Court properly found that the respondent, the injured plaintiff's spouse, offered no evidence to support his derivative cause of action to recover damages for loss of services, and dismissed it. To establish a prima facie case for a cause of action to recover damages for loss of services, a spouse must offer evidence that the injured plaintiff can no longer provide the benefits of marriage, including "love, companionship, affection, society, sexual relations, solace and more" (Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 502). Allowing a spouse every favorable inference which could reasonably be drawn from the evidence, if no rational jury could find for him or her, the cause of action must be dismissed (see, Rhabb v. New York City Housing Auth., 41 N.Y.2d 200). Here, the injured plaintiff's speculative and conclusory testimony as to the alleged loss of services suffered by the respondent, which was the only evidence offered on this issue, was insufficient to support his derivative claim.
O'BRIEN, J.P., ALTMAN, FRIEDMANN and H. MILLER, JJ., concur.