        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
