This is a personal injury action in which plaintiffs, Helga Hyland, Patrick W. Hyland, and Anita M. Hyland, seek to recover [*2]damages for injuries they each allegedly sustained on May 13, 2012, when the vehicle in which they were riding was involved in a collision with the vehicle owned by Sook Choo and operated by defendant Okbyi Kim. Plaintiff Anita Hyland was a rear seat passenger in the vehicle operated by her mother, Helga Hyland and occupied by her father, Patrick W. Hyland. The accident took place at or near the intersection of 17th Avenue and 147th Street, Queens County, New York. It is alleged that the defendant Okbyi Kim failed to stop at a stop sign and struck the plaintiffs' vehicle broadside at a high rate of speed causing physical injuries and severe emotional distress to the three plaintiffs.

Plaintiffs commenced the instant action by the service of a summons and complaint on August 21, 2012. Defendants Choo and Kim appeared in this action by service of an Answer with Counterclaim dated September 5, 2012. Plaintiff on the counterclaim, Helga Hyland, appeared in this action by service of a Reply to Counterclaim dated January 17, 2013. Plaintiff filed a Note of Issue on January 30, 2014. The matter is presently on the calendar of the Trial Scheduling Part on January 28, 2015.

Defendants Sook Choo and Okbyo Kim and plaintiff on the counterclaim Helga Hyland, now move for an order pursuant to CPLR 3212 dismissing the complaint of plaintiff, Anita M. Hyland, on the ground that the injuries claimed by said plaintiff fail to satisfy the serious injury threshold requirement of Section 5102(d) of the Insurance Law.

In support of the motion, the defendants submit affirmations from counsel, Donald Munson, Esq., and Marcella Gerbasi Crewe, Esq; a copy of the pleadings; plaintiff's verified bill of particulars; a copy of the transcript of plaintiff's examination before trial; a copy of the affirmed medical report of board certified orthopedic surgeon, Dr. Leon Sultan and neurologist, Dr. Monette G. Basson and the uncertified hospital records from the emergency room admission of Anita Hyland of May 13, 2012.

In her verified bill of particulars, plaintiff, Anita Hyland, states that as a result of the accident she sustained inter alia, injury to left ankle, injury to left knee, bruises and swelling on left upper extremity, great emotional distress, sleep disturbance, mood swings, great fear, pain, suffering and mental anguish. The bill of particulars states further that Anita Hyland was in the zone of danger and witnessed severe injuries to her mother and father. Plaintiff Anita Hyland contends that the injuries set forth in the bill of particulars are permanent and progressive in nature and duration and caused by the subject accident.

Anita Hyland, age 42, a real estate attorney, was deposed on July 10, 2013. She stated that she did not miss any time from work as a result of injuries she sustained in the accident. Ms. Hyland stated that she was a front seat passenger in a vehicle being operated by her mother, Helga, when it was involved in an accident on May 13, 2012 at approximately 7:30 p.m. The accident occurred at the intersection of 17th Avenue and 137th Street in the Whitestone section of Queens County. Her father, Patrick, was seated in the rear passenger seat. The family had left a Mother's Day celebration at a restaurant and they were heading back to their home in Whitestone, traveling on 17th Avenue. When they reached the intersection with 147th Street the driver, Helga Hyland stopped at a stop sign facing in her direction and then proceeded into the intersection. When the vehicle was in the middle of the intersection it was struck broadside on the driver's side door by the vehicle operated by the defendant. The intersection is controlled by stop signs facing in all four directions.

After the impact, Anita opened the rear door and observed her father laying unconscious on the rear seat. She testified that she believed he was dead. The police had to cut her mother out of the vehicle due to the damage to the driver's side door. Anita, as well as both of her parents were taken by ambulance to New York Hospital of Queens where her father was admitted to the ICU for a traumatic brain injury. He had suffered a subdural hemorrhage and subdural hematoma. His injuries resulted in a change in his mental status and he required extensive hospitalization and inpatient rehabilitation. With respect to her own injuries, Anita Hyland stated that the impact caused injuries to her left ankle and left knee. She sought treatment from her primary physician, Dr. Hundert for pain to her left knee, left ankle and right shoulder. He examined her and told her to take Advil. She did not have any other medical treatment for her injuries other than the one visit with Dr. Hindert. She stated that at the present time she suffers from occasional minor pain from her injuries. However, she also testified that has been treating with psychologist, Irene Schulman. She began seeing Ms. Schulman prior to the accident with regard to her divorce. Once the accident occurred her psychological treatments focused on the accident and her post-traumatic stress disorder.

The plaintiff was seen for an independent orthopedic evaluation on November 16, 2013 by orthopedist, Dr. Leon Sultan, a physician retained by the defendants. At that time the plaintiff reported to Dr. Sultan that she injured her left ankle and left knee in the subject accident. She claimed occasional [*3]stiffness involving her left knee and left ankle. Dr. Sultan performed objective range of motion testing utilizing a goniometer which revealed no limitations of range of motion of the plaintiff's left knee and left ankle. He stated, based upon his examination of the plaintiff's left ankle and left knee, that the plaintiff had no ongoing causally related orthopedic impairment with regard to the subject accident and no residual permanency.

Dr. Monette Basson, a neurologist, examined the plaintiff on November 18, 2013. Dr. Basson found found the plaintiff to be neurologically completely normal with virtually no complaints. She found that the plaintiff did not sustain a neurologic injury as a result of the accident.

Defendants' counsel contends that the affirmed medical reports of Drs. Sultan and Basson as well as the plaintiff's deposition testimony, are sufficient to establish, prima facie, that the plaintiff has not sustained a permanent loss of a body organ, member, function or system; that she has not sustained a permanent consequential limitation of a body organ or member or a significant limitation of use of a body function or system. Counsel also contends that the plaintiff, who did not miss any work as a result of her own injuries did not sustain a medically determined injury or impairment of a nonpermanent nature which prevented the plaintiff, for not less than 90 days during the immediate one hundred days following the occurrence, from performing substantially all of her usual daily activities.

In opposition to the motion, the plaintiff submits an affidavit dated July 30, 2014, stating that after the impact she observed that both of her parents, her mother in the drivers seat, and her father in the rear passenger seat, were seriously injured. She states that she was emotionally upset having witnessed both of her parents in serious physical distress, as well as observing the medical and police personnel taking life saving measures at the scene. In this respect the plaintiff submits two reports from her psychologist, Irene Schulman LCSW dated August 13, 2013 and July 8, 2014. The reports of psychologist Schulman describe many psychological problems and symptoms sustained by Ms. Hyland as a result of the accident and seeing her parents in distress. Ms. Schulman states that as a result of Anita Hyland being in the zone of danger and witnessing the injuries to her mother and father she suffered post-traumatic stress disorder. The psychologist's reports which were in letter form were subsequently sworn to by Ms. Schulman by affidavit dated August 12, 2014.

Plaintiff's attorney, states that the defendants' respective motions must be denied as the defendants failed to present any expert testimony which addressed the plaintiff's claim, set forth in her bill of particulars and in her complaint, that she suffered emotional injuries as a result of being in the zone of danger. Plaintiff contends that as she has alleged negligent infliction of emotional distress and post-traumatic stress disorder as a serious injury under the Insurance Law, it was incumbant for the defendants to address these injuries with expert testimony in order to meet their burden of demonstrating, prima facie, that plaintiff's injuries are not serious within the meaning of Insurance Law § 5102. Counsel asserts that plaintiff continues to have psychotherapeutic treatment for post-traumatic stress and anxiety caused by the accident.

Plaintiff claims that she has asserted a viable claim for negligent infliction of emotional distress as she alleged facts showing that she was within the zone of danger and she observed or contemporaneously became aware of serious physical injury to an immediate family member (citing Bovsum v Sanperi, 61 NY2d 219 [1984]). Thus counsel contends that the dismissal of her complaint is inappropriate as the defendants have failed to present any evidence in support of the motion for summary judgment that she does not have a valid zone of danger claim or post-traumatic stress disorder.

On a motion for summary judgment, where the issue is whether the plaintiff has sustained a serious injury under the no-fault law, the defendant bears the initial burden of presenting competent evidence that there is no cause of action (Wadford v. Gruz, 35 AD3d 258 [1st Dept. 2006]). "A defendant can establish that plaintiff's injuries are not serious within the meaning of Insurance Law § 5102 (d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim" (Grossman v Wright, 268 AD2d 79 [1st Dept. 2000]). Whether a plaintiff has sustained a serious injury is initially a question of law for the Court (Licari v Elliott, 57 NY2d 230 [1982]).

Where defendants' motion for summary judgment properly raises an issue as to whether a serious injury has been sustained, it is incumbent upon the plaintiff to produce evidentiary proof in admissible form in support of his or her allegations. The burden, in other words, shifts to the plaintiff to come forward with sufficient evidence to demonstrate the existence of an issue of fact as to whether he or she suffered a serious injury (see Gaddy v Eyler, 79 NY2d 955 [1992]; Zuckerman [*4]v. City of New York, 49 NY2d 557[1980]; Grossman v. Wright, 268 AD2d 79 [2d Dept 2000]).

Upon review and consideration of the defendants' motion, plaintiff's affirmation in opposition, and defendants' reply thereto, this court finds that the evidence submitted by the defendants and plaintiff on the counterclaim failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

The Court's have held that it is well established that a causally-related emotional injury, including post-traumatic stress disorder, alone or in combination with a physical injury, can constitute a serious injury as it would constitute a permanent loss of use of a body function or system or a significant limitation of use (see Hill v Cash, 117 AD3d 1423 [4th Dept. 2014]; Krivit v Pitula, 79 AD3d 1432 [3rd Dept. 2010]; Brandt-Miller v McArdle, 21 AD3d 1152 [3rd Dept. 2005]). Thus, when plaintiff alleges such injury, it is incumbent on the defendants, in moving for summary judgment on the issue of threshold, to present expert testimony which addresses the plaintiff's claim (see Haque v City of New York, 97 AD3d 636 [2d Dept. 2012][the defendants failed to adequately address the plaintiff's claim that as a result of the subject accident, he sustained certain psychological injuries constituting a serious injury within the meaning of Insurance Law § 5102 (d)]; Krayn v Torella, 40 AD3d 588 [2d Dept. 207]; cf: Kranis v Biederbeck, 83 AD3d 903 [2d Dept.2011]; Villeda v Cassas, 56 AD3d 762 [2d Dept. 2008]).

In her bill of particulars, the plaintiff set forth the allegation that in addition to suffering an injury to her left knee and left ankle, she also sustained emotional distress as a result of being in the zone of danger. However, the defendant failed to submit a report from an expert which addressed or specifically ruled out post-traumatic stress disorder or severe emotional distress as a result of the accident. Thus, as the defendants failed to address the alleged emotional injury the evidence submitted is insufficient to demonstrate that there are no triable issues of fact with respect to the plaintiff's alleged permanent and significant psychological injuries.

Inasmuch as the defendants and the plaintiff on the counterclaim did not meet their prima facie burden, it is unnecessary to consider the sufficiency of the plaintiff's papers in opposition (see Delayhaye v Caledonia Limo & Car Serv., [*5]Inc., 61 AD3d 814 [2d Dept. 2009]; Yong Deok Lee v Singh, 56 AD3d 662 [2d Dept. 2008]; Ali v Rivera, 52 AD3d 445, [2d Dept. 2008]).

Accordingly, based on the foregoing, it is hereby,

ORDERED, that the respective motions by the defendants and by the plaintiff on the counterclaim for summary judgment dismissing the complaint of plaintiff, Anita M. Hyland, is denied.

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.