State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 31, 2016 521221 

________________________________

JUDITH A. McKENNA,

Individually and as

Administrator of the

Estate of JAMES J. McKENNA

JR., Deceased, 

Appellant,

v MEMORANDUM AND ORDER

JOHN T. REALE,

Respondent.

________________________________

Calendar Date: February 9, 2016

Before: Peters, P.J., McCarthy, Egan Jr. and Lynch, JJ.

__________

Melley Platania, PLLC, Rhinebeck (Steven M. Melley of

counsel), for appellant.

Burke, Scolamiero, Mortati & Hurd, LLP, Hudson (Judith B.

Aumand of counsel), for respondent.

__________

Lynch, J.

Appeal from an order of the Supreme Court (Zwack, J.),

entered August 21, 2015 in Rensselaer County, which granted

defendant's motion for summary judgment dismissing the complaint.

On April 30, 2009, James J. McKenna Jr. (hereinafter

decedent), who was riding a bicycle, was struck and killed by

defendant, who was driving his vehicle southbound on Route 82 in

the Town of Livingston, Columbia County. The collision occurred

just past the intersection of Routes 82 and 9 as decedent, also

traveling southbound, crossed Route 82 from the east to the west
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shoulder in front of defendant's vehicle. Plaintiff, as

administrator of decedent's estate, commenced this action for

wrongful death and conscious pain and suffering. Following

completion of discovery, Supreme Court granted defendant's motion

for summary judgment dismissing the complaint. Plaintiff now

appeals. 

Generally, to succeed on a motion for summary judgment, a

defendant must submit sufficient admissible evidence to establish

the absence of any material issues of fact and to warrant

judgment as a matter of law in his or her favor (see CPLR 3212;

Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). To

determine whether there are any factual issues, we view the

evidence in a light most favorable to the nonmoving party and

give that party the benefit of every favorable inference (see

Boston v Dunham, 274 AD2d 708, 709 [2000]). In this wrongful

death action, "admittedly slight and clearly circumstantial"

evidence may be sufficient to raise a triable issue of fact

(Budik v CSX Transp., Inc., 88 AD3d 1097, 1098 [2011] [internal

quotation marks and citation omitted]; see Noseworthy v City of

New York, 298 NY 76, 80-81 [1948]). 

Assuming that decedent was negligent, because there can be

more than one proximate cause of an accident (see O'Brien v

Couch, 124 AD3d 975, 977 [2015]), defendant's obligation on this

motion was to establish his "freedom from comparative fault as a

matter of law" (Palmeri v Erricola, 122 AD3d 697, 698 [2014]; see

Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]). Drivers have a

duty to exercise reasonable care under the circumstances

presented and to see and respond to the conditions in the roadway

within their view (see Rivera v Fritts, 136 AD3d 1249, 1251

[2016]; Smith v Allen, 124 AD3d 1128, 1130 [2015]; see also PJI

2:77). Here, defendant relies primarily on his own deposition

testimony and the police report wherein the investigating officer

concluded that "the primary causative factor of th[e] collision

was [decedent's] failure . . . to yield the right of way" to

defendant's truck. Defendant testified that there was no traffic

as he proceeded through the intersection and that he was driving

below the speed limit at a constant speed. He acknowledged that,

at this point, he looked towards the gas station to the right,

and then looked down at his gas gauge. When he "looked back up
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at the road," he saw decedent for the first time "[r]ight in

front of [him]." Defendant explained that he had "tunnel vision"

and was uncertain whether he saw the bike in motion moving across

the road. He braked and attempted to steer left but hit

decedent, who rolled across the hood and hit the windshield

before landing behind the truck. In our view, from defendant's

own testimony, a jury could reasonably conclude that defendant

failed to see what there was to be seen through the proper use of

his senses. Accordingly, we disagree with Supreme Court's

conclusion that defendant met his prima facie burden as to the

cause of decedent's death (see Palmeri v Erricola, 122 AD3d at

698; Boston v Dunham, 274 AD2d at 710). 

Next, Supreme Court properly determined that defendant

established prima facie entitlement to summary judgment

dismissing plaintiff's claim for conscious pain and suffering

from the moment of injury to the moment of death. To establish

such a claim, the evidence must support a finding that decedent

experienced "some level of awareness" before dying (McDougald v

Garber, 73 NY2d 246, 255 [1989] [internal quotation marks

omitted]; see Martin v Reedy, 194 AD2d 255, 259 [1994]). 

Accordingly, on this motion, defendant's initial burden was to

establish that decedent did not endure conscious pain and

suffering (see Houston v McNeilus Truck & Mfg., Inc., 115 AD3d

1185, 1186 [2014]). Dismissal of a claim for conscious pain and

suffering is not warranted in the absence of proof that decedent

was unconscious immediately after the accident (see id.; Barron v

Terry, 268 AD2d 760, 761 [2000]). Here, the paramedics reported

that decedent was dead upon their arrival, the coroner concluded

that decedent's death was instantaneous from multiple head

injuries and defendant testified that, as soon as he approached

after the accident, he observed that decedent was unconscious,

not moving and did not appear to be breathing. In our view, this

evidence of decedent's condition immediately following the

accident, coupled with the coroner's and paramedic's reports, was

sufficient to demonstrate prima facie entitlement to summary

judgment dismissing plaintiff's cause of action for conscious

pain and suffering for the physical injuries sustained. That

defendant placed a blanket over decedent does not, as plaintiff

maintains, present a question of fact as to whether decedent was

conscious (see Boston v Dunham, 274 AD2d at 711). 
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We reach a different conclusion with respect to plaintiff's

claim for preimpact terror, which pertains to the emotional pain

and suffering that decedent may have endured between the moment

he observed defendant's vehicle and the moment of impact (see PJI

2:320). Defendant testified that he saw decedent immediately

prior to impact, that decedent was facing "[t]owards [his] right"

and that he could not recall whether decedent looked in his

direction. This testimony does not establish, as a matter of

law, that decedent was unaware of the impending collision. 

Moreover, operative facts that are solely within the movant's

knowledge should not form the basis for a motion for summary

judgment (see Budik v CSX Transp., Inc., 88 AD3d at 1098). In

our view, a jury should be permitted to determine whether

decedent was aware of impending serious physical injury or death,

even if the duration of such comprehension was limited (see

Boston v Dunham, 274 AD2d at 711; Lang v Bouju, 245 AD2d 1000,

1001 [1997]).

Finally, turning to plaintiff's claim for wrongful death,

recovery may be had for "fair and just compensation for the

pecuniary injuries resulting from [a] decedent's death to the

persons for whose benefit the action is brought" (EPTL 5-4.3 [a];

see EPTL 5-4.1). "[T]he essence of the cause of action for

wrongful death in this [s]tate is that the plaintiff's reasonable

expectancy of future assistance or support by [the] decedent was

frustrated by [the] decedent's death" (Gonzalez v New York City

Hous. Auth., 77 NY2d 663, 668 [1991]). Thus, a plaintiff may

recover for "'[l]oss of support, voluntary assistance and

possible inheritance, as well as medical and funeral expenses

incidental to death'" (id., quoting Parilis v Feinstein, 49 NY2d

984, 985 [1980]; see EPTL 5-4.3 [a]). Because it is difficult to

establish pecuniary loss, damages in a wrongful death case should

typically be for a jury to calculate (see Milczarski v Walaszek,

108 AD3d 1190, 1190 [2013]). Here, plaintiff testified that her

son did not work much and did not own property, but that, during

decedent's lifetime, he would give her birthday and Christmas

gifts, occasionally gave her money and, before she moved to an

assisted living facility, would mow her grass. Plaintiff also

testified that she contributed money towards her son's funeral
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expenses.1 Based on the limited record, we find that defendant

did not demonstrate the absence of any material questions with

regard to plaintiff's pecuniary loss and that Supreme Court

should not have dismissed the wrongful death claim (see id. at

1190-1191; Singer v Friedman, 220 AD2d 574, 577 [1995]).

Peters, P.J., McCarthy and Egan Jr., JJ., concur.

ORDERED that the order is modified, on the law, without

costs, by reversing so much thereof as granted defendant's motion

for summary judgment dismissing the causes of action for

preimpact terror and wrongful death; motion denied to said

extent; and, as so modified, affirmed. 

ENTER:

Robert D. Mayberger

Clerk of the Court

1 On this appeal, plaintiff asserts, without record

support, that Columbia County has a lien for funeral expenses.