SHEARER v. MOONEY

Order unanimously reversed, on the law, with costs, and motion denied. Memorandum: A cause of action for loss of services and society of a spouse is predicated upon physical or mental injury or incapacity of that spouse ( see, Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 504; 15 N.Y. Jur, Domestic Relations, § 302 [rev ed]; Prosser and Keeton, Torts § 125, at 932 [5th ed 1984]; Restatement [Second] of Torts § 693 [1977]). In this legal malpractice action there is no allegation of physical or mental injury or incapacity inflicted upon either spouse; hence, Special Term should not have granted permission to amend the complaint to add the cause of action for loss of consortium.