SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

656 

CA 12-02134 

PRESENT: CENTRA, J.P., FAHEY, CARNI, AND SCONIERS, JJ.

 

 

CHRISTOPHER A. MILCZARSKI, AS ADMINISTRATOR 

OF THE ESTATE OF MARK A. MILCZARSKI, DECEASED, 

PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

MICHAEL K. WALASZEK, K.W. AUTO & SALES INC., 

DEFENDANTS-APPELLANTS, 

ET AL., DEFENDANTS. 

(APPEAL NO. 2.) 

 

BURDEN, GULISANO & HICKEY, LLC, BUFFALO (DONNA L. BURDEN OF COUNSEL),

FOR DEFENDANTS-APPELLANTS. 

 

Appeal from an order of the Supreme Court, Niagara County

(Richard C. Kloch, Sr., A.J.), entered November 15, 2012. The order

granted the motion of defendants Michael K. Walaszek and K.W. Auto &

Sales Inc., for leave to renew, and upon renewal, denied their motion

for partial summary judgment. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting in part the motion of

defendants Michael K. Walaszek and K.W. Auto & Sales Inc. for partial

summary judgment and dismissing the complaint against those defendants

insofar as it seeks damages for plaintiff’s pecuniary loss beyond

reimbursement of funeral expenses and for any pecuniary loss sustained

by distributee Cynthia Craft and as modified the order is affirmed

without costs. 

Memorandum: In this wrongful death action, Michael K. Walaszek

and K.W. Auto & Sales Inc. (defendants) appeal from an order that

granted their motion for leave to renew their motion for partial

summary judgment seeking, inter alia, dismissal of the complaint

insofar as it sought damages for decedent’s family members for the

pecuniary loss of support, guidance and companionship of decedent, but

that, upon renewal, adhered to its prior determination denying the

motion. We reject defendants’ contention that there are no issues of

fact with respect to whether any of decedent’s family members suffered

pecuniary damages. Damages in a wrongful death action are limited to

“fair and just compensation for the pecuniary injuries resulting from

the decedent’s death to the persons for whose benefit the action is

brought” (EPTL 5-4.3 [a]). “Pecuniary loss” is defined as “the

economic value of the decedent to each distributee at the time

decedent died” (Huthmacher v Dunlop Tire Corp., 309 AD2d 1175, 1176),
-2- 656 

CA 12-02134 

and includes loss of income and financial support, loss of household

services, loss of parental guidance, as well as funeral expenses and

medical expenses incidental to death (see Gonzalez v New York City

Hous. Auth., 77 NY2d 663, 667-669; DeLong v County of Erie, 60 NY2d

296, 306-308). Generally, because it is difficult to provide direct

evidence of wrongful death damages, the calculation of pecuniary loss

“is a matter resting squarely within the province of the jury”

(Parilis v Feinstein, 49 NY2d 984, 985; see Altmajer v Morley, 274

AD2d 364, 365). On this record, we conclude that there are issues of

fact with respect to whether plaintiff, as decedent’s brother,

suffered pecuniary loss in the form of funeral expenses and whether

decedent’s brother Matthew suffered pecuniary loss given the evidence

of their longstanding close and interdependent relationship. We agree

with defendants, however, that they are entitled to summary judgment

dismissing the complaint insofar as it seeks damages for plaintiff’s

pecuniary loss beyond reimbursement for funeral expenses and for any

pecuniary loss sustained by decedent’s sister, Cynthia Craft. We

therefore modify the order accordingly. 

Entered: July 19, 2013 Frances E. Cafarell

Clerk of the Court