Preview:

[*1]


Decided on August 1, 2006
Supreme Court, Nassau County

12419/04
Kurzman, Karelsen & Frank, LLP Attorneys for Plaintiff 230 Park Avenue, 23rd Floor New York, NY 10169 Martyn, Toher and Martyn, Esqs. Attorneys for Defendant By: David C. Smith, Esq.
1983 Marcus Avenue
New Hyde Park, NY 11042
Daniel Palmieri, J.
Upon the foregoing papers it is ordered that this motion by the defendants for summary judgment pursuant to CPLR 3212 is granted to the limited extent that the cause of action sounding in wrongful death is dismissed insofar as asserted by the plaintiff Linda Saegert on her own behalf, and is otherwise denied.
This is a personal injury and wrongful death action that is based upon the death of plaintiff's decedent, Victoria Sarafino, which resulted from her being struck by an automobile being driven by defendant Gerard Simonelli. The essential facts of how the accident occurred are not disputed. At approximately 10:00 p.m. on March 25, 2003 Simonelli and coworkers, including one Craig Bergen, left their place of business to go home, and turned north on to Franklin Avenue in Franklin Square, New York. They were driving north at about 25 to 30 miles per hour, roughly side-by-side, in the two northbound lanes. Bergen was in the left northbound lane, Simonelli in the right. North of Franklin Avenue's intersection with Linden Street, Sarafino, a pedestrian, attempted to cross from the other side of this four-lane road. She was not in a crosswalk. Bergen apparently saw her and managed to slam on his brakes in time to avoid hitting her. However, Simonelli testified that he did not see her until she appeared in front of him because Bergen's vehicle obstructed his view, and she was struck by his car. She was alive when she was taken to a nearby hospital, but unfortunately expired approximately three hours later, in the early morning of March 26, 2003.
Initially, the Court finds that the plaintiff as executrix has the standing to bring this action, except insofar as she asserts a claim for wrongful death on her own behalf. [*2]There is no dispute that the plaintiff and Sarafino were same-sex domestic partners who had lived together for some 17 years prior to the latter's death. The Appellate Division, Second Department, has ruled that a same

Download 2006_51548.pdf

New York Law