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Claims Of Loss Of Children’s Society And Services

Posted in on June 21, 2016

Although aware that loss of a child’s society is not compensable, we still see it as claimed damages within pleadings and bills of particulars. Loss of a child’s services by a parent is similarly non-compensable unless specifically claimed and particularized as special damages.

Based upon black letter law, claims pertaining to the loss of “society” of a child are not compensable. Gilbert v. Stanton Brewery, 67 N.E.2d 155, 295 N.Y. 270 (1947); Devito v. Opatich, 215 A.D.2d 714, 627 N.Y.S.2d 441 (2nd Dep’t 1995); White v. City of New York, 37 A.D.2d 603, 322 N.Y.S.2d 920 (2nd Dep’t 1971); Foti v. Quittel, 19 A.D.2d 635, 241 N.Y.S.2d 15 (2nd Dep’t 1963). The claim itself is improper as a claim for damages in any litigation.

Further, claims of a loss of a child’s services, better described as parental pecuniary losses, must be proven and supported by evidence. Gilbert v. Stanton Brewery, 67 N.E.2d 155, 295 N.Y. 270 (1947); Devito v. Opatich, 215 A.D.2d 714, 627 N.Y.S.2d 441 (2nd Dep’t 1995); White v. City of New York, 37 A.D.2d 603, 322 N.Y.S.2d 920 (2nd Dep’t 1971); Foti v. Quittel, 19 A.D.2d 635, 241 N.Y.S.2d 15 (2nd Dep’t 1963). “The mere relationship of the parties is not sufficient to constitute a loss of services.” Pickle v. Page, 169 N.E. 650, 252 N.Y. 474 (1930). If plaintiff offers no proof of the parental pecuniary loss, and proof that a parent was relying in some way upon the services that may have been provided by a child, at the time of the allegations, the claims are properly dismissed.

It is often asserted that a jury could conclude the fair amount of services lost to a parent although the Court of Appeals is clear that presentation to a jury allows “an improper element of damages. Gilbert v. Stanton Brewery, 67 N.E.2d 155, 295 N.Y. 270 (1947) quoting Barnes v. Keene, 132 N.Y. 13. Without proof of pecuniary loss provided during discovery the claims must be dismissed. Devito v. Opatich, 215 A.D.2d 714, 627 N.Y.S.2d 441 (2nd Dep’t 1995); White v. City of New York, 37 A.D.2d 603, 322 N.Y.S.2d 920 (2nd Dep’t 1971). It is insufficient simply to assert that a child is inconsistent with chores.

 

BY: Teri Scotto-Lavino
slavino@lewisjohs.com

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