SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
May 14, 1968
NAOMI B. MARKOWITZ, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF RUBIN MARKOWITZ, DECEASED, ET AL., RESPONDENTS,
IRVING FEIN, AS COMMITTEE OF THE ESTATE OF MARK FEIN, APPELLANT
Order, entered on June 23, 1967, granting plaintiffs' motion to the extent of striking the defendant's affirmative defenses as to all causes of action except the second and fourth causes of action and granting defendant's cross motion only to the extent of dismissing the second and fourth causes of action, unanimously modified on the law to the extent of dismissing the first, fifth, sixth and eighth causes of action, and otherwise affirmed without costs or disbursements to either party.
Concur -- Stevens, J. P., Eager, Capozzoli, McGivern and Bastow, JJ.
Plaintiffs concede in their brief that their first cause of action, for conscious pain and suffering of the decedent arising from an assault, is time-barred by CPLR 215. The fifth cause of action which is based upon mental anguish and suffering of the decedent's family caused by the decedent's disappearance is legally insufficient. The plaintiffs herein were not the subjects of the alleged intentional tort and were not witnesses thereto. (Kalina v. General Hosp. of City of Syracuse, 31 Misc. 2d 18, affd. 18 A.D.2d 757, affd. 13 N.Y.2d 1023; Robbins v. Castellani, 37 Misc. 2d 1046.) It follows that the sixth cause of action, which seeks punitive damages based upon the allegations of the fifth cause of action is also legally insufficient. While we find the seventh cause of action to be valid because it is based upon interference with the right of the next of kin to the immediate possession of the decedent's body for preservation and burial, we do not believe that punitive damages are recoverable and we therefore dismiss the eighth cause of action.
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