loss of prospective inheritance since they were contingent beneficiaries under decedents' wills. They also argue that there are questions of fact concerning the guidance and services provided to them by the decedents.
With respect to plaintiffs' expected inheritance, Cook and Datskow were both listed as residuary beneficiaries under the wills of Robert and Susan Gross. Robert Gross's will provided that Cook would take fifty percent of the estate in the event that his wife Susan, and their son Michael predeceased Robert leaving no issue. Susan Gross's will contained a similar provision based on Robert and Michael predeceasing Susan. Each will also provided that Datskow would take fifty percent of the estate under the same contingencies as Cook, but with the added requirement that either Cook or Rose Gross (Robert's mother) must have predeceased the testator.
Actually, Datskow and Cook did each receive half of the estates. Their loss of inheritance claim is premised on the argument that, had decedents not been killed, the estates would have grown larger because Robert and Susan Gross would have continued to earn money, and, so the argument goes, they stood a change to recover more from the estate in the future, assuming that all the contingencies to their taking were fulfilled.
To recover on their wrongful death claims, plaintiffs must present an evidentiary basis for a reasonable expectation of pecuniary loss from decedents' death. Public Administrator of Kings County v. U.S. Fleet Leasing of New York, Inc., 159 A.D.2d 331, 332, 552 N.Y.S.2d 608 (1990). I find that plaintiffs have not done so. Plaintiffs' claims are too speculative.
Damages for wrongful death are not recoverable when they are based on contingencies which are "uncertain, dependent on future changeable events and, thus, inherently speculative." Farrar v. Brooklyn Union Gas Co., 73 N.Y.2d 802, 804, 537 N.Y.S.2d 26, 533 N.E.2d 1055 (1988). The court in Farrar held that a wrongful death plaintiff could not recover for loss of inheritance resulting from the loss of a federal estate tax credit on the theory that had the decedent lived until 1987 instead of dying in 1982, the estate would have realized the full benefit of the credit, and no federal estate tax would have been paid. The court in Farrar stated that the plaintiff sought recovery "of an inchoate [tax credit] which decedent may have earned in the future assuming at least these key factors remained the same--the amount and assets of the estate, the decedent's tax status, and the tax law itself . . . Such a loss is not compensable." Id. at 804.
The case at bar presents a similar situation. Plaintiffs' claim rests on the assumption that a number of things would have happened but for the plane crash: the assets of decedents' estates would have increased; the testators would have been predeceased by their spouses and by their child; and perhaps most importantly, decedents would all have predeceased plaintiffs.
Such contingencies are simply too speculative to support a claim for damages. Had the crash not occurred, the Gross' estates may well have increased, but by the same token, it would have become far less likely that Datskow and Cook ever would have taken anything under the wills. In the natural course of events, the estates would have passed not to them, but to the decedent's surviving spouse or their child, Michael Gross, or his issue.
This case, then, is distinguishable from those involving claims based on a child's loss of prospective inheritance from his parent, since it is not unreasonable to expect even a young child someday to inherit his parent's estate. For example, in Zaninovich v. American Airlines, 26 A.D.2d 155, 271 N.Y.S.2d 866 (1966), a wrongful death action arising out of the deaths of a husband and wife, 29 and 28 years old respectively, who left behind four children ranging from 7 months to 7 years old, the court held that losses "from frustrated expectations of inheritance . . . are entitled to some evaluation." Id. at 161.
Significantly, however, the court in Zaninovich added that both the children and parents were so young that the expectations of inheritance were "almost ephemeral," and that "as to such losses, with people as young as these who died here, at the start of their careers, the contingencies for the far future become extremely great and require an all but total discounting of the suggested expectations." Id. at 160-61 (emphasis added).
Even though children ordinarily inherit from their parents, then, the court in Zaninovich clearly indicated that the case was on the borderline between recoverable and nonrecoverable damages. I believe that the case at bar crosses that line. It not only involves expectations of events far in the future, as in Zaninovich, but adds the unlikely contingencies that Michael Gross would have predeceased not only his parents but plaintiffs as well, leaving no issue. In my view, that combination of "uncertain, . . . future changeable events" makes the alleged losses "inherently speculative," and therefore noncompensable. Farrar, 73 N.Y.2d at 804.
Regarding damages for other elements of pecuniary loss, such as loss of support and voluntary assistance, defendant contends that the record shows that the only services performed by decedents for plaintiffs' benefit were so occasional that they are not compensable.
On these damages, I grant defendant's motion insofar as it relates to Datskow, but deny it as to Cook. Plaintiffs have not pointed to any evidence of support or services that Datskow reasonably expected to receive from decedents, other than residuary benefits under their wills.
Datskow's affidavit in opposition to the motion focuses on the emotional bonds between her and decedents; she states, for example, that Robert and Susan Gross often spent time together, and that they were her "soul mates" and "above all, (her) friends." While I do not doubt or minimize Datskow's feelings for her brother and his family, New York law is clear that her loss in this regard is not compensable in a wrongful death action. Gonzalez, 77 N.Y.2d 663, 569 N.Y.S.2d 915, 572 N.E.2d 598 .
In addition, plaintiffs have not shown either in their answers to interrogatories or in deposition testimony any basis for finding that Datskow suffered pecuniary injury. Plaintiffs virtually concede as much, since their arguments concerning Datskow focus almost exclusively on her inheritance claim, and their contentions concerning other types of loss are limited almost entirely to Cook.
Plaintiffs contend that at Datskow's deposition, defense counsel failed to follow up questions about whether Datskow had been dependent upon decedents for support, which Datskow answered in the negative.
A mere omission to ask a given question, however, is hardly enough to overcome defendant's specific allegations that there are no genuine issues of material fact on this claim. In the face of an otherwise valid summary judgment motion, plaintiffs must come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see also Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S. Ct. 3177, 3188, 111 L. Ed. 2d 695 (1990).
Not only have plaintiffs failed to make such a showing, but the admissions that they have made show that Datskow did not suffer any pecuniary injury in the form of loss of support or services. Plaintiffs' interrogatory answers simply offer no assertions in this regard; see Stegich Aff. Ex. D. In addition, Datskow admitted at her deposition that except for holiday gifts, she never "received any kind of monetary gifts, money or anything like that from Robert or Susan" Gross, and that after becoming married, she was never "dependent on them for any kind of income or support." Datskow Depos. p. 40.
As to Cook's claims, however, I find that fact questions do exist which should await trial. Although defendant makes much of Cook's allegedly good health and the fact that her daughter had no legal obligation to support her, the fact remains that she was 77 years old at the time of the crash, and a jury could find that she had a "reasonable expectancy of future assistance or support by the decedent." Gonzales, 77 N.Y.2d at 668.
There is also evidence that Susan Gross performed some services for Cook, including help with Cook's income tax returns, and financial advice. In my view, such services could be viewed as compensable "voluntary assistance," id., and cannot be said as a matter of law to be insufficient to support Cook's claim. "Where parents are the plaintiff beneficiaries the pecuniary injuries include loss of their child's services, not limited to the decedent's minority." Franchell v. Sims, 73 A.D.2d 1, 5, 424 N.Y.S.2d 959 (1980). Although defendant argues that these services were too infrequent to be compensable, that is a question of the weight of the evidence which should be left to the jury. "Calculation of pecuniary loss is a matter resting squarely within the province of the jury." Parilis v. Feinstein, 49 N.Y.2d 984, 985, 429 N.Y.S.2d 165, 406 N.E.2d 1059 (1980).
I also grant defendant's motion to dismiss the wrongful death claims for funeral expenses. To some extent, this is a moot point, since defendant concedes that plaintiffs can pursue this claim in the survival action. Since it is uncontradicted that the funeral expenses were paid for out of Robert Gross's estate, however, and not by plaintiffs, they are not recoverable on the wrongful death claim. E.P.T.L. § 5-4.3(a).
Finally, defendant's motion to dismiss the claim for medical expenses is denied. Plaintiffs contend that there was an ambulance bill of several hundred dollars, and such expenses, if proved, are compensable. Id.
Defendant's motion for partial summary judgment is granted in part, and plaintiffs' wrongful death claims are dismissed except as to the claims for damages for pecuniary losses on the part of Juletta Cook, and their claims for medical expenses. As to those damages, defendant's motion is denied.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT JUDGE
Dated: Rochester, New York
April 1, 1992.