Opinion
November 22, 1993
Appeal from the Supreme Court, Nassau County (Robbins, J.).
Ordered that the judgment is reversed insofar as appealed from, on the law, with costs, the plaintiff's cause of action to recover damages for conscious pain and suffering is dismissed, and the matter is remitted to the Supreme Court, Nassau County, for the entry of an appropriate amended judgment.
We find that the trial court improperly submitted to the jury the issue of the decedent's alleged conscious pain and suffering due to the accident. When there is no evidence of consciousness after injury, a cause of action to recover damages for conscious pain and suffering should not be submitted to the jury (see, Williams v City of New York, 169 A.D.2d 713; see also, Lates v Health Ins. Plan, 19 A.D.2d 629, affd 13 N.Y.2d 920; Delosovic v City of New York, 143 Misc.2d 801, affd 174 A.D.2d 407). In the case at bar, no evidence was presented that the decedent experienced any conscious pain or ever regained consciousness prior to his death. Accordingly, the plaintiff failed to make out a prima facie case with respect to conscious pain and suffering, and this issue was improperly submitted to the jury.
In view of our determination, we need not address the other issues raised on appeal. Eiber, J.P., O'Brien, Santucci and Joy, JJ., concur.