why, as a matter of law, it was not reasonably foreseeable that a person whose home was damaged by the impact of the crash might not be injured in that home at a subsequent date.
In addition to the issue of whether or not one or more intervening events caused the shifting of the staircase or caused plaintiff to fall, is the issue of whether plaintiff knew or should have known of the condition of the staircase (particularly in light of the property damage she claimed and has already recovered for as to her home). See, Slomin v. Skaarland Construction Corp., 207 A.D.2d 639, 615 N.Y.S.2d 941, 943 (3rd Dep't 1994) (finding plaintiff's knowledge of the potentially dangerous condition of a lack of flooring directly in front of a staircase to be a triable issue of fact). Plaintiff's allegations indicate the stair step pitched or tilted inferring that the damage was latent. On the other hand, the fact that the house was affected by the impact of the crash was well known to the plaintiffs, and they may have had a duty of care to avoid any known or suspected risks in the home prior to its renovation. In particular, plaintiffs allege secondarily (i.e. "to compound matters") that "a step, pitched or tilted, and a loosened handrail gave way" suggesting that the handrail may have been loose for three months and that this was well known to plaintiff. Nevertheless, these issues are best left to the jury to decide, further indicating that summary judgment is inappropriate here.
Thus, as defendant cannot sustain its burden of showing that plaintiff can in no way prevail, its motion for summary judgment is denied on this issue.
IV. Property Damage
Plaintiffs also seek compensation for property damage to their home. This is evidence of overreaching. Plaintiffs waived their recovery rights by assigning the claim to their insurance company, the Vigilant Insurance Company, and accepting a settlement of $ 326,546.33. Avianca subsequently settled the subrogation claim brought by the insurance carrier. At this point, plaintiffs are simply seeking double recovery to which, of course, they are not entitled. Thus, defendant's motion for summary judgment on the issue of property damage must be and is hereby granted.
V. Spouse's Derivative Claims
Mr. Hassanein seeks recovery for loss of consortium of his wife. He alleges, among other things, that his relationship with his wife has degenerated significantly as a result of the crash. He also claims she used to help him with his business, and is no longer able to do so. Consequently, his business has suffered.
Loss of consortium is a derivative claim; as long as the defendant is liable to an injured spouse, a valid cause of action can exist for the other spouse. See, Perrin, 797 F. Supp. at 302 (dismissing loss of consortium claim where spouse's negligence action was dismissed) Siskind v. Norris, 152 A.D.2d 196, 198, 548 N.Y.S.2d 160, 162 (1st Dep't 1989). "'The concept of consortium includes not only loss of support of services, it also embraces such elements as love, companionship, affection, society, sexual relations, solace and more.'" Delosovic v. City of New York, 143 Misc. 2d 801, 810, 541 N.Y.S.2d 685, 691 (N.Y. Sup. Ct. 1989) (quoting, Millington v. Southeastern Elevator Co., Inc., 22 N.Y.2d 498, 502, 239 N.E.2d 897, 899, 293 N.Y.S.2d 305, 308 (1968)), aff'd, 174 A.D.2d 407, 572 N.Y.S.2d 857 (1st Dep't 1991). Derivative claims such as these are "'predicated on physical or mental injury or incapacity of that spouse.'" Delosovic, 143 Misc. 2d at 811, 541 N.Y.S.2d at 692 (quoting, Shearer v. Mooney, 109 A.D.2d 1104, 1104, 487 N.Y.S.2d 206, 206 (4th Dep't 1985).
As stated above, summary judgment is granted in favor of defendant as to Mrs. Hassanein's claims for emotional injuries. Accordingly, summary judgment is granted in favor of defendant as to Mr. Hassanein's claims for loss of consortium based on his wife's emotional injury claims. On the other hand, if a jury finds that Avianca is responsible for Mrs. Hassanein's physical injury, Mr. Hassanein's derivative claims are possibly compensable. See, Perrin, 797 F. Supp. at 302. Thus, summary judgment is granted in part and denied in part with regard to Mr. Hassanein's claims for loss of consortium: it is granted as to his claims based on his wife's alleged emotional injuries, and denied as to his claims based on her alleged physical injury.
Where plaintiffs had no family members aboard Avianca flight 052 and Mrs. Hassanein did rot suffer any physical harm from her efforts at the crash scene, summary judgment is granted in favor of defendant on the issue of negligent infliction of emotional distress and related medical costs. Summary judgment is also granted for defendant on plaintiffs' property damage claim. Summary judgment is, however, denied on the issue of whether plaintiff's knee injury resulted from defendant's negligence as defendant cannot show that plaintiff can not prevail under any circumstances.
Thomas C. Platt
Chief Judge, U.S.D.C.
Dated: Uniondale, New York
January 10, 1995
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