Aronov v. Regency Gardens Apartments Corp.

In an action to recover damages for wrongful death and conscious pain and suffering, the plaintiff appeals from an order of the Supreme Court, Queens County (Grays, J.), dated June 29, 2005, which granted the defendant’s motion pursuant to CPLR 3211 (a) (5) to dismiss so much of the plaintiffs cause of action as sought to recover damages for wrongful death. Ordered that the appeal is dismissed, with costs, as the plaintiff is not aggrieved by the order appealed from (see CFLR 5511). CFLR 3211 (a) permits a party to move, on certain enumerated grounds, “for judgment dismissing one or more causes of action asserted against him [or her].” The defendants here moved to dismiss, as time-barred, only so much of the plaintiffs single cause of action as sought to recover damages for wrongful death. In disposing of the motion, the order appealed from articulated the Supreme Court’s determination in sufficient detail (see CFLR 2219), and thus made clear that so much of the plaintiffs cause of action as sought to recover damages for her decedent’s conscious pain and suffering was not dismissed. Rather, upon dismissal, that portion of the cause of action which sought to recover damages for wrongful death was effectively 405 severed from that portion of the cause of action which sought to recover damages for conscious pain and suffering (see Tow v Moore, 24 AD2d 648, 649 [1965]; Forse v Turner, 55 Misc 2d 810, 812 [1968]; cf. Zivian v McNulty, 136 AD2d 547, 548 [1988]; see also Behren v Papworth, 30 NY2d 532 [1972]; Sirlin Plumbing Co. v Maple Hill Homes, 20 NY2d 401, 402-403 [1967]; but cf. Burke v Crosson, 85 NY2d 10, 16 [1995]). Accordingly, so much of the cause of action as sought to recover damages for conscious pain and suffering remains viable, and the plaintiff is not barred from litigating it. In light of the foregoing, and because the plaintiff did not register opposition to the dismissal of so much of her cause of action as sought to recover damages for wrongful death, the plaintiff is not aggrieved by the order appealed from (see CPLR 5511; Whiteman v Yeshiva & Mesivta Torah Temimah, 255 AD2d 378, 379 [1998]; Ciaccio v Germin, 138 AD2d 664, 665 [1988]). Ritter, J.P., Goldstein, Rivera and Spolzino, JJ., concur.