Summary
In Rosado v Mercedes-Benz of North Amer. (69 A.D.2d 877), it was held that since the fourth cause of action was "essentially a claim * * * for general damages arising out of decedent's wrongful death * * * the interrogatories were properly stricken".
Summary of this case from Panto v. Di LorenzoOpinion
April 23, 1979
In a wrongful death action, defendant Mercedes-Benz of North America, Inc., appeals from an order of the Supreme Court, Westchester County, entered July 19, 1978, which granted plaintiff's motion to strike its written interrogatories. Order affirmed, with $50 costs and disbursements. The fourth cause of action in plaintiff's amended verified complaint, although incorrectly drawn on behalf of the plaintiff "individually", is essentially a claim (albeit inartfully broad) for general damages arising out of the decedent's wrongful death (see EPTL 5-4.1; 67 N.Y. Jur, Wrongful Death, §§ 75, 77, 82, 163, 165, 167). The instant case thus falls squarely within the holding of Allen v Minskoff ( 38 N.Y.2d 506) and the interrogatories were properly stricken (see CPLR 3130). Titone, J.P., Suozzi, Lazer and Cohalan, JJ., concur.