Opinion
No. 1742.
October 18, 2007.
Order, Supreme Court, Bronx County (Nelson Roman, J.), entered January 30, 2007, which, upon a nonjury inquest, awarded plaintiff $6,800 for established funeral expenses, and dismissed for lack of admissible evidence plaintiffs claims for pecuniary damages, including pain and suffering, unanimously affirmed, without costs.
Armand J. Rosenberg, New York, for appellant.
Harry M. Stokes, Granite Springs, for respondent.
Before: Nardelli, J.P., Gonzalez, Sweeny, McGuire and Kavanagh, JJ.
Plaintiff's reliance on the Noseworthy doctrine ( Noseworthy v City of New York, 298 NY 76) is unavailing where the estate offered no admissible evidence to indicate that the decedent had been conscious at any time during the 6:00 A.M. residential fire or to the point, about an hour later, when she was pronounced dead (see Cummins v County of Onondaga, 84 NY2d 322). Fire Department records indicated that the decedent was found in a back bedroom, unconscious and in cardiac arrest from smoke inhalation. Medical reports indicated that the decedent did not suffer any burns on her body. Efforts to resuscitate her at the scene and later at the emergency room were unsuccessful. Plaintiff's reliance on the doctrine of "presumption of continuance" as a substitute for proof of the decedent's consciousness at the time of an injurious event is misplaced, absent some admissible evidence that the decedent was in fact conscious immediately prior to or following the injurious event (see id. at 326).