DeLong v. County of Erie

Hancock, Jr., J.

(dissenting as to verdict for wrongful death). With respect to the verdict of $600,000 for “the pecuniary injuries resulting from the decedent’s death to the persons for whose benefit the action is brought” (EPTL 5-4.3), we must differ with our colleagues. In light of other awards for the death of a housewife and mother, we find it excessive (see Matter of McBride v Bentivegna, 90 AD2d 981; cf. Juiditta v Bethlehem Steel Corp., 75 AD2d 126, upholding an award of $100,000 exclusive of lost wages where decedent had four children; Simmons v Kinney Nat. Serv., 53 AD2d 846, affd 43 NY2d 659, reducing an award of $325,000 for the death of a 30-year-old housewife and mother of three children, 10, 9 and 5 years of age, to an award of $250,000; Rodriguez v Columbus Hosp., 38 AD2d 517, finding excessive an award of $100,000 for the death of a 49-year-old housewife who left a husband and three children, ages 12,10 and 8; Griscti v State of New York, 35 AD2d 764, reducing an award of $100,000 to $65,000 for damages for wrongful death of a housewife who was 38 at the time of her death and left a husband and four infant children, all under the age of 8 years; Zaninovich v American Airlines, 26 AD2d 155, reducing an award from $200,000 to $125,000 where the mother was not employed and had four children, one of whom was mongoloid; see, also, Sewar v Gagliardi Bros. Serv., 69 AD2d 281, affd 51 NY2d 752).

We note that an error at trial may have contributed to the size of the verdict (cf. Zaninovich v American Airlines, supra, p 159). The court over objection permitted expert testimony by a professor of economics to the effect that the replacement cost of a housewife’s services to a family statistically similar to the deceased’s was $527,659. Under the rule established in Zaninovich, it is error to allow expert proof as to the cost of providing a substitute for a housewife’s services because “[t]hese are matters within *390the common ken, and subject to so many variables and choices that no objective standard can be supplied by an expert” (Zaninovich v American Airlines, supra, p 159). We have recently applied this rule in Ashdown v Kluckhohn (62 AD2d 1137).

For these reasons, we believe that the award of $600,000 for the wrongful death of Amalia DeLong should be reversed and a new trial granted as to damages only on that cause of action.

Dillon, P. J., Denman, Moule and Schnepp, JJ., concur with Hancock, Jr., J., as to affirmance of verdict for conscious pain and suffering. Dillon, P. J. and Schnepp, J., concur in affirmance of verdict for wrongful death in an opinion by Denman, J., from which Hancock, Jr., and Moule, JJ., dissent in a separate opinion by Hancock, Jr., J.

Judgment affirmed, with costs.