Hass v. Manhattan & Bronx Surface Transit Operating Authority

170 A.D.2d 406

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 1991
• Status: Published

Opinion

Order, Supreme Court, New York County (Eugene Nardelli, J.), entered November 8, 1989, denying defendants’ motion for partial summary judgment unanimously affirmed, without costs.

Plaintiff commenced this action setting forth causes of action, in a representative capacity, for personal injury to and the wrongful death of her daughter, the decedent, and individually, for personal injury allegedly sustained when she watched her daughter mangled under the wheels of defendants’ bus. Defendant moved for summary judgment dismissing plaintiff’s individual cause of action only, which was denied.

To recover for personal injuries resulting from the observation of serious physical injury to a relative, the plaintiff must herself have been at the time of the relative’s injury, within the zone of danger. (Bovsun v Sanperi, 61 NY2d 219.) As plaintiff has established that material questions of fact exist as to whether her efforts to help her daughter exposed her to a risk of physical injury, which thereby placed her within the zone of danger, we now affirm (see, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065). Concur—-Carro, J. P., Ellerin, Kupferman, Smith and Rubin, JJ.