The following papers numbered 1 to 11 read on this motion:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-6

Opposing Affidavits (Affirmations)7, 8

Reply Affidavits (Affirmations)9, 10, 11

Affidavit (Affirmation)

Other Papers

Upon the foregoing papers, plaintiffs move for reargument of a certain Order of this court dated October 18, 2012.

Defendant Eurobungy was the manufacturer of the Eurobungy Model T4 4-in-1 trampoline (the trampoline), a trampoline jumping device. The trampoline had a square frame with a jackstand leg attached to each corner of the frame, and there were four cleats fastened to the top of the bottom flange of the frame. It was equipped with four poles and five cables, four of which were intended to connect the pole to the cleats on the frame, with the fifth cable, which had a turnbuckle and was referred to as the "outer cable," intended to connect the pole to the jackstand leg.

Third-Party defendant West Hills Day Camp, Inc. (West Hills) purchased the trampoline for use at its children's day camp, and controlled and/or directed and supervised its erection and dismantling. Plaintiffs' decedent, Daniel Garcia (Daniel), was employed by West Hills. Andris Garcia (Andris) was the maintenance manager of West Hills. His duties at West Hills included the maintenance, assembly, and disassembly of the trampoline. Andris had received training in the disassembling of the trampoline. On July 14, 2008, Andris was in charge of dismantling the trampoline to address an operational problem. He enlisted the help of four other employees of West Hills: Reynaldo Rodriguez (Rodriguez), Blas Pena (Pena), Ovalle-Ventura, and Rosario, to assist him in the disassembling of the trampoline. Garcia had previously trained these four employees on how to disassemble it. During the dismantling process, Daniel, who was Garcia's father, came over to help.

In disassembling the trampoline, the workers loosened the turnbuckle and removed the carabiner for the cable connecting pole No.1 to the jackstand before they pivoted the pole inward and removed the four support cables connecting the pole to the frame. The workers did not lower any of the jackstand legs to release the tension from the cables. The workers then disconnected and removed pole #1. Thereafter, the workers disconnected pole #2 and lowered it to a horizontal position when pole #4 fell inwards across the trampoline and struck Daniel in the head. Daniel died instantly as a result of his injuries.

The instant action was commenced on June 11, 2012 pursuant to CPLR 205(a), following the dismissal of plaintiffs' original action by Order of Justice Bert A. Bunyan dated June 6, 2012. Issue was joined by defendant Eurobungy's service of its answer and third-party complaint against third-party defendant West Hills.

On or about October 2, 2012, West Hills filed a motion dated September 19, 2012, for an Order, pursuant to CPLR 3211(a)(7), dismissing, among other things, the claims for pecuniary loss by the decedent's adult children (Wilman, Andris and Maria), based upon the contention that their father did not perform any services for them under which they could recover compensation in a wrongful death action. On that same date, Eurobungy filed a cross motion for similar relief upon similar grounds.

On October 18, 2012, this court heard oral argument on these motions, and stated its intention to treat West Hill's motion as one for summary judgment pursuant to CPLR 3212. By its order of that same date, third-party defendant's motion was granted.^[FN1] By subsequent order of this court dated January 28, 2013, West Hill's motion was formally converted to one for summary judgment (CPLR 3212), and plaintiffs' motion to reargue was adjourned to March 28, 2012, with leave given to all parties to file additional papers in the interim. Additionally, by Stipulation dated January 14, 2013, the claim asserted on behalf of Andris Garcia in his individual capacity was discontinued with prejudice, and Eurobungy's motion for partial summary judgment dated December 20, 2012 was [*2]withdrawn.

CPLR 2221(d) provides that a motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." (CPLR §2221[d]; Foley v Roche, 68 AD2d 558 [1979]).

The court grants reargument, and upon consideration of the issues, adheres to its original determination.

Plaintiffs assert that they had satisfied the legal requirement of demonstrating that a cause of action on their behalf has been stated.^[FN2] They further note that in connection with their prior motion before this court (Plaintiffs' Cross Motion for Leave to Serve an Amended Summons and Complaint), each of the decedent's adult children provided an affidavit of merit stating that Daniel rendered "advice, counsel, support and guidance." Finally, they argue that to the extent that the court exercised its discretion in converting the motion to one for summary judgment under CPLR 3212, the court erred in failing to provide notice of its intention to do so.

Plaintiffs' contention that the court erred in converting the original motion, for dismissal for failure to state a cause of action, to one for summary judgment, based upon the argument that they were denied the opportunity to document the nature and pecuniary value of the decedent's services, is devoid of merit. "CPLR 3211(c) requires that if a court intends to treat a CPLR 3211 motion as one for summary judgment under CPLR 3212, it must give the parties notice of its intention to do so" (Hendrickson v Philbor Motors, Inc., 102 AD3d 251, 258 [2012], citing Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; Matter of South Blossom Ventures, LLC v Town of Elma, 46 AD3d 1337, 1338 [2007]; Kempf v Magida, 37 AD3d 763, 765 [2007]). Plaintiffs, who do not deny receiving such notice, only contend that "at [an] informal unrecorded hearing [held on October 18, 2012]...the court proceeded to scrutinize the affidavits of merit of the three adult children apparently in the same manner it would have done on a motion for summary judgment filed pursuant to CPLR 3212," and speculatively assert, through their attorney, that additional submissions would have led to evidence that would have supported their claims "for pecuniary damages through this loss of support and guidance." Although granted the opportunity to submit additional papers in support of the present motion, the only "evidentiary" support provided herein consists of the three substantially identical affidavits of the moving plaintiffs dated December 12, 2011, submitted previously on the underlying motion and containing the nearly identical conclusory language on the issue of pecuniary damages. Consequently, no basis for reconsideration of the court's determination to treat West Hill's motion [*3]as one seeking summary judgment is presented on this motion.

Moreover, plaintiffs have failed to demonstrate that the court overlooked any facts or law in granting summary judgment dismissing their causes of action. In that branch of its motion seeking dismissal of said causes of action alleged by decedent's adult children, West Hills demonstrated its prima facie entitlement to judgment as a matter of law. It correctly argued that such a claim cannot be brought by the emancipated children of decedents who were not members of his household, and that it demonstrated that plaintiffs, whose affidavits discussed no measurable services performed by their father, were essentially asserting claims for loss of consortium, a claim which is not recognized within a wrongful death cause of action (see Liff v Schildkrout, 49 NY2d 622, 634 [1980]). In opposition to the present motion, it argues that the affidavits of the adult children raise only feigned issues of fact and for that reason their affidavits should be disregarded.

In support of their arguments on the substantive issues herein, the adult children plaintiffs rely in part on the Court of Appeals' holding in Gonzalez v New York City Housing Auth. (77 NY2d 663 [1991]). Such reliance is unavailing.

The measure of damages obtainable in a wrongful death action "may be such sum as the jury or, where issues of fact are tried without a jury, the court or referee deems to be fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought." (EPTL 5-4.3 [a]). The persons for whom a wrongful death action is brought are the distributees of the decedent (see DeLuca v Gallo, 287 AD2d 222, 225 [2001]). "While other States now permit recovery for loss of society, New York since its first wrongful death statute has steadfastly restricted recovery to pecuniary injuries,' or injuries measurable by money, and denied recovery for grief, loss of society, affection, conjugal fellowship and consortium" (Gonzalez, 77 NY2d at 667-668 [citations omitted]). "[T]he essence of the cause of action for wrongful death in this State is that the plaintiff's reasonable expectancy of future assistance or support by the decedent was frustrated by the decedent's death. Loss of support, voluntary assistance and possible inheritance, as well as medical and funeral expenses incidental to death, are injuries for which damages may be recovered. . . . In the case of a decedent who was not a wage earner, pecuniary injuries' may be calculated, in part, from the increased expenditures required to continue the services she provided, as well as the compensable losses of a personal nature, such as loss of guidance." (Id. at 668 [citations omitted]).

Applying the foregoing principles, the Gonzalez Court concluded that plaintiffs' status as adult financially independent grandchildren did not, of itself, preclude their recovery (id. at 669 ["(t)he argument that an adult distributee cannot state a claim for pecuniary injuries based on the loss of a parent's guidance was long ago rejected by this court"]). However, in examining the record upon which the plaintiffs in Gonzalez based their arguments that they suffered pecuniary loss as a result of their grandmother's death, the Gonzalez Court, which rejected defendant's argument that her contributions were de minimus, made specific findings that decedent contributed far more, and that her grandchildren relied upon her contributions, which could be assigned pecuniary value (Gonzalez, 77 NY2d at 670 ["(d)ecedent provided shelter for her granddaughter during a marital crisis, and helped both grandchildren cope with their mother's condition. The child care plan was more than occasional. Even the meals she furnished cannot accurately be called occasional—Marta Gonzalez testified that she ate dinner with her mother and grandmother every other day, while Antonio Freire testified that he visited his grandmother every other day and she frequently prepared his meals. Nor is it significant that the decedent prepared meals in her daughter-in-law's home rather than in plaintiffs' homes. Wherever provided, the decedent's services would have to be replaced by plaintiffs. The same is equally true of her counseling, the shelter she provided for her granddaughter, and the meals she regularly prepared for both grandchildren"] [emphasis provided]).

Moreover, while the Gonzalez Court clearly stated that the loss of guidance was an element of pecuniary damages that could be recovered by adult children of a decedent, its holding did not dispense with the requirement that the loss of services be demonstrated. In distinguishing, as had the Appellate Division, the holding in Bumpurs v New York City Housing Auth. (139 AD2d 438 [1988]) which the defendant had relied upon, the Court noted that the decedent in Bumpurs had [*4]provided no services to her adult children (id. at 669). The holding in Kiker v Nassau County (175 AD2d 99 [1991]) does not afford any additional support for moving plaintiffs' arguments ("[t]he testimony of the children who testified at trial, indicated that Mrs. Kiker had provided financial support for the two minor children, and provided them with her services as a homemaker...Additionally, there was evidence that Mrs. Kiker had provided all the children, including the adult children, with parental guidance and advice, as well as nurture and care. . . ."] [citations omitted]). Here, plaintiffs, whose conclusory affidavits failed to raise an issue of fact in opposition to defendants' prima facie showing resulted in dismissal of their complaint (see Gilbert Frank Corp. v Federal Insurance Co., 70 NY2d 966 [1988]), have failed make the requisite showing under CPLR 2221(d), and as noted, the court adheres to its original determination.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C.