The plaintiff commenced this action to recover damages for personal injuries sustained in a motor vehicle accident. On July 3, 2007 , the infant plaintiff, who was three years old at the time, was a passenger in a vehicle owned by defendant Jeanell Singletary and operated by defendant Shanell Eldridge. It is alleged that Ms. Eldridge was operating the motor vehicle on the New York State Thruway (I-90) at the time of the crash and fell asleep while driving. Eldridge lost control of her vehicle, and drove off the side of the road, causing the vehicle to roll several times. The vehicle came to a rest upside down on its roof. The infant plaintiff's mother was a passenger in the vehicle, together with a cousin. The plaintiff and her twin brother, Shamar, were both ejected from the vehicle. Once the vehicle came to rest, the three adult passengers exited the car, screaming for the children. Shortly after the adults got out of the vehicle, Shamaya emerged from the brush off to the side of I-90. Shamaya was picked up by one of the adults as they continued looking for Shamar. One of the adults was consoling Shamaya when they found Shamar's body, not far from the car. Shamar had sustained significant traumatic injuries and was dead at the scene of the accident. There is evidence that Shamaya was scared and asking repeatedly "Where is my brother?" In contrast to her twin brother, Shamaya did not sustain significant physical injuries. The infant plaintiff initiated the instant action for emotional injuries sustained in the motor vehicle accident.

Defendants have moved for summary judgment dismissing the complaint contending that Shamaya did not sustain a non-grief based causally-related emotion injury from being in the "zone of danger" that was serious and verifiable and which reached the level of qualifying as a "serious injury." Defendants contend that any psychological injuries that plaintiff has sustained is a result of the grief over losing her twin brother rather than a compensable psychological trauma arising from her immediate observations of the death of her brother. Plaintiff opposed, submitting an affidavit of a clinical psychologist.

It is well-established that New York recognizes a cause of action for negligent infliction of emotional distress, more commonly referred to as a "zone of danger" claim. In order to recover for an alleged emotional injury based on the zone of danger theory of liability, a plaintiff must establish that he suffered serious emotional distress that was proximately caused by the observation of a family member's death or serious injury while in the zone of danger (Bovsun v. Sanperi, 61 NY2d 219 [1984]). The emotional injury must be not only serious and verifiable but also "tied, as a matter of proximate causation, to the observation of the serious injury or death of the family member and such injury or death must have been caused by the conduct of the defendant" (Bovsun, supra at 231-232). The observation requirement is satisfied if the "peril or harm to such family member occurs in the plaintiff's presence, so long as there is a contemporaneous awareness of injury or death" (see, Cushing v. Seemann, 247 AD2d 891 [4th Dept. 2000]). A causally related emotional injury can constitute a "serious injury" under Insurance Law §5102(d), so long as the emotional disturbance is serious and verifiable (see, Chapman v. Capoccia, 283 AD2d 798 [3rd Dept. 2001]).

Defendants' expert, licensed psychologist Dr. Jerid Fisher, reviewed the party deposition [*2]transcripts, pleadings, pre-hospital care reports of the ambulance company and hospital records. Dr. Fisher did not examine the infant plaintiff. A review of Dr. Fisher's opinion reveals that it is more a criticism of plaintiff's expert's preliminary report, rather than an opinion offered that plaintiff has not suffered from any emotional disturbance causally related to the accident. This Court finds that defendants failed to establish, prima facie, that they are entitled to summary judgment.

In any event, this Court finds that plaintiff has raised triable issues of fact, necessitating a trial on this issue. Plaintiff's expert, clinical psychologist Dr. Kenneth Condrell, provided an affidavit in opposition. Dr. Condrell reviewed the accident reports, various litigation materials, including medical records and deposition transcripts. He also interviewed the infant plaintiff and her parents. Dr. Condrell concludes that Shamaya is not only aware of the loss of her brother but is very much absorbed by thoughts of how her brother died. Dr. Condrell opines that Shamaya suffers from chronic sadness and depression, as well as post-traumatic stress disorder. Furthermore, it is Dr. Condrell's professional opinion that Shamaya will likely require significant psychological counseling throughout the course of her life. Based upon the papers submitted by plaintiff in opposition to defendants' motion, including the circumstances of the accident as alleged by the plaintiff, together with her expert's opinion, there are clearly issues of fact regarding Shamaya's contemporaneous awareness of her brother's death.

This Court finds that the defendants have failed to eliminate significant issues of fact regarding Shamaya's contemporaneous awareness of her brother's death. Furthermore, the competing expert opinions concerning causation and injuries raise a triable issue of fact which requires a jury's determination. Based upon the same, defendants' motion for summary judgment is hereby denied.

This constitutes the Decision of the Court. Counsel is directed to submit an order in accordance herewith.

_______________________________________

Craig J. Doran

Acting Supreme Court Justice

Dated at Canandaigua, New York,

thisday of May, 2011.