Fitzgerald v. Sanchez — 60 A.D.2d 520

Majority

p. 520

Thomas I. Fitzgerald, as Administrator of the Estate of Lea J. Castillo, Also Known as Lea Jarquin, Deceased, Respondent, et al., Plaintiffs, v Cesar Sanchez, Appellant, et al., Defendants.

Judgment, Supreme Court, New York County, entered in favor of plaintiff-respondent on June 14, 1976, after trial before Gellinoff, J., and a jury, so far as appealed from, unanimously reversed, on the law and new trial ordered on the issue of damages only, without costs or disbursements. The brother of the decedent testified at the trial that his father resided with him. The decedent’s father having survived her, he was her sole distributee (EPTL 4-1.1, subd [a], pars [4], [7]). This action was not for the benefit of the decedent’s surviving brother as the court erroneously charged. The charge failed to limit recovery to the net pecuniary loss to the next of kin of the deceased. A new trial on the issue of damages is required. (EPTL 5-4.3, 5-4.4.) Concur—Kupferman, J. P., Evans, Capozzoli and Lynch, JJ.