Opinion
22119 2005.
Decided March 31, 2006.
Plaintiff, Marcia Young (Young), as administratrix of the estate of Lizette Davis (Davis), commenced this action on October 12, 2005 to recover damages resulting from an automobile accident. Plaintiff alleges that on October 23, 2002, Davis, a pedestrian, sustained serious injuries resulting in her death, when Davis was struck by an automobile owned and operated by defendant, Bonilla.
Bonilla moves to dismiss the complaint on the grounds that the statute of limitations applicable to a wrongful death action, as prescribed by EPTL 5-4.1(1), expired on October 23, 2004, almost one year prior to the commencement of this action. In opposition, Young argues that because this is a survival action seeking damages for the decedent's personal injuries, and not for wrongful death, the applicable statute of limitations is governed by CPLR 214(5), thus making the complaint timely.
Generally, a cause of action for personal injuries is separate and distinct from one for wrongful death. ( Lancaster v. 46 NYL Partners, 228 AD2d 133.) A personal injury action is for conscious pain and suffering of the decedent prior to his death. This contrasts with a wrongful death action for pecuniary injuries resulting from decedent's death and certain expenses. The recovery for conscious pain and suffering accrues to the decedent's estate, whereas the damages for wrongful death are for the benefit of the decedent's distributees' who have suffered pecuniary injury'. . . . The claims are thus predicated on essentially different theories of loss which accrue to different parties. ( Id. at 138, quoting Ratka v. St. Francis Hosp., 44 NY2d 604.)
It is necessary, therefore, to determine the nature of plaintiff's cause of the action as contemplated by the complaint. Defendant's contention that this is a wrongful death action is without merit. It appears that the complaint states a claim for the decedent's conscious pain and suffering, rather than the pecuniary injuries resulting from decedent's death. Therefore, the statute of limitations, as governed by CPLR 214(5), did not expire until October 25, 2005.
Accordingly, defendant's motion to dismiss the complaint is denied, as plaintiff's complaint was timely filed.