Seitzman v. Hospital of Albert Einstein College of Medicine

Order of the Supreme Court, Bronx County (Jack Turret, J.), entered on June 26, 1989, which granted defendants’ motion to strike the word "death” from plaintiff’s bill of particulars, unanimously reversed, on the law, the facts and in the exercise of discretion, and the motion denied, with costs.

Plaintiff’s decedent’s estate brought this action to recover damages for conscious pain and suffering. There is no cause of *178action for wrongful death inasmuch as there are no eligible distributees.

The motion court reasoned that inclusion of the word "death” was an attempt to add a cause of action for wrongful death, rather than to amplify the pleadings. We disagree.

Because the estate would be entitled to recover funeral expenses pursuant to EPTL 11-3.3, the inclusion of the word "death” in the bill of particulars is proper, and not an attempt to add a nonviable wrongful death cause of action. Concur— Murphy, P. J., Sullivan, Carro, Kassal and Wallach, JJ.