Emenike v. Ginsburg Development Companies

2016 NY Slip Op 6882, 143 A.D.3d 575, 38 N.Y.S.3d 906

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 20, 2016
• Docket: 1985 301697/07
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered May 19, 2015, which, to the extent appealed from, denied the motion of defendant Kensington Woods Homeowners Association Inc. (Kensington) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

The record presents triable issues of fact as to whether Kensington either created or had notice of the hazardous condition that caused the death of plaintiffs’ decedent, namely, the Norway Spruce that fell on his car and crushed him (see e.g. Connolly v Incorporated Vil. of Lloyd Harbor, 139 AD3d 656 [2d Dept 2016]; Priore v New York City Dept. of Parks & Recreation, 124 AD3d 749 [2d Dept 2015]). In addition, considering that the autopsy report indicated that the decedent slowly suffocated to death as a result of the tree resting on his head, issues of fact exist regarding whether, during that time, decedent had conscious pain and suffering. Decedent’s widow, who raced out of her house to discover her husband crushed by the tree, also has a cognizable claim for negligent infliction of emotional distress arising from being in the “zone of danger” (see Garcia v Lawrence Hosp., 5 AD3d 227 [1st Dept 2004]; Cushing v Seemann, 247 AD2d 891 [4th Dept 1998]).

Concur— Sweeny, J.P., Renwick, Manzanet-Daniels, Gische and Webber, JJ.