New York Court of Appeals, 1980

Parilis v. Feinstein

New York Court of Appeals · Decided April 29, 1980

49 N.Y.2d 984; 406 N.E.2d 1059; 429 N.Y.S.2d 165; 1980 N.Y. LEXIS 2343

Cases that cite this one

82 later published cases cite this decision. The 23 that cite it most often are listed here.

Barrett v. United States (District Court, S.D. New York 1987)
McKee ex rel. McKee v. Colt Electronics Co. (2d Cir. 1988)
Woodling v. Garrett Corp. (2d Cir. 1987)
Pratt v. George Spalty Sons, Inc. (New York Supreme Court 1987)
Freeland v. Erie County (Appellate Division of the Supreme Court of New York 2022)
Bacchus-Sirju v. Hollis Women's Ctr. (Appellate Division of the Supreme Court of New York 2021)
Rivera v. Montefiore Medical Center (Appellate Division of the Supreme Court of New York 2014)
Freier v. Westinghouse Electric Corporation (2d Cir. 2002)
Freier v. Westinghouse Electric Corp. (2d Cir. 2002)
Altmajer v. Morley (Appellate Division of the Supreme Court of New York 2000)
Lamarca v. United States (District Court, E.D. New York 1999)
Jerry Kubecka, Inc. v. Avellino (District Court, E.D. New York 1995)
Datskow v. Teledyne Continental Motors Aircraft Products, a Division of Teledyne Industries, Inc. (District Court, W.D. New York 1992)
Milbrandt v. A.P. Green Refractories Co. (N.Y. 1992)
In re Eastern & Southern Districts Asbestos Litigation (District Court, S.D. New York 1991)
Gonzalez v. New York City Housing Authority (N.Y. 1991)
Ruiz v. New York City Health & Hospitals Corp. (Appellate Division of the Supreme Court of New York 1991)
Raucci v. Town Of Rotterdam (2d Cir. 1990)
Public Administrator v. U.S. Fleet Leasing of New York, Inc. (Appellate Division of the Supreme Court of New York 1990)
Raucci v. Town of Rotterdam (2d Cir. 1990)
Nussbaum v. Gibstein (Appellate Division of the Supreme Court of New York 1988)
Regan v. Long Island Rail Road (Appellate Division of the Supreme Court of New York 1987)
Barrett v. United States (District Court, S.D. New York 1986)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

In this negligence action to recover damages stemming from the death of decedent, a 12-year-old boy, plaintiff was awarded $50,000 for wrongful death and $25,000 for conscious pain and suffering, the latter amount having been reduced to $15,000 upon stipulation. On this appeal, defendant maintains that, as a matter of law, the jury was required to be instructed that plaintiff was limited to recovering nominal damages on the wrongful death cause of action. The amount of the wrongful death award is not otherwise questioned by defendant.

Damages in a wrongful death action are, by statute, limited to "pecuniary injuries” suffered by the distributees of decedent’s estate (EPTL 5-4.3). Such damages are limited to loss of support, voluntary assistance and possible inheritance, as well as medical and funeral expenses incidental to death (Keenan v Brooklyn City R. R. Co., 145 NY 348, 350-351), but do not include those damages which could have been recovered in a personal injury action had the decedent survived (Liff v Schildkrout, 49 NY2d 622, 633). But in any wrongful death action, especially one involving a child of tender years, the absence of dollars and cents proof of pecuniary loss does not relegate the distributees to recovery of nominal damages only (Ihl v Forty-Second St. & Grand St. Ferry R. R. Co., 47 NY 317, 320-321; cf. Park West Mgt. Corp. v Mitchell, 47 NY2d 316, 329). Rather, since it is often impossible to furnish direct evidence of pecuniary injury, calculation of pecuniary loss is a matter resting squarely within the province of the jury. In the present case, there was proof as to the age, character and condition of the decedent and the circumstances of his distrib*986utees. This evidence was sufficient to premise the award of pecuniary damages and the jury’s evaluation of this factual question may not be disturbed here as. a matter of law (Birkett v Knickerbocker Ice Co., 110 NY 504, 508).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.