                          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
                              -2-                521221

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
                              -3-                521221

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).
                              -4-                521221

      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
                                -5-                  521221

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.
