30 A.D.2d 229, Tobin v. Grossman

Citation30 A.D.2d 229, 291 N.Y.S.2d 227
Party NameTobin v. Grossman
Case DateJune 28, 1968
CourtNew York Supreme Court Appelate Division, Third Department

Page 229

30 A.D.2d 229

291 N.Y.S.2d 227

Philomena TOBIN, as Mother and Natural Guardian of Gregory Tobin, an Infant, et al., Respondents,

v.

Stuart GROSSMAN, Appellant.

Supreme Court of New York, Third Department

June 28, 1968.

Page 230

[291 N.Y.S.2d 228] Donohue, Bohl, Clayton & Komar, Albany (Myron Komar, Albany, of counsel), for defendant-appellant.

Sanford Rosenblum, Albany (Eugene R. Spada, Albany, of counsel), for plaintiffs-respondents.

Before GIBSON, P.J., and HERLIHY, REYNOLDS and GABRIELLI, JJ.

AULISI, Justice.

Appeal is taken from an order of the Supreme Court at Special Term, entered December 4, 1967 in Albany County which denied a motion to dismiss the third cause of action in plaintiffs' complaint, and from an order denying reargument of such motion. It is alleged that on September 18, 1966, the infant plaintiff sustained personal injuries by reason of defendant's negligent operation of his automobile. The first cause of action for personal injuries to the infant plaintiff and the second, a derivative action asserted by the mother, are not involved in this appeal. The third cause of action in the complaint alleges that 'at the time and place of said accident wherein her said infant son was struck down, the plaintiff, Philomena Tobin, was present near the said public sidewalk and in close proximity to where her infant child was then walking; that it was under such circumstances that the defendant, Stuart Grossman, did then and there, in full view and presence of the plaintiff, strike and injure her infant child.' The complaint, so far as pertinent here, further alleges that as a result of the accident occurring in the presence of the plaintiff, she has become physically and mentally ill; that defendant should have anticipated or reasonably foreseen that as a consequence of his negligent conduct, 'any close relative present in the immediate

Page 231

vicinity, including the child's mother, was likely to sustain shock induced by fear of imminent danger and injury to her child.' The third cause of action seeks to recover damages for these alleged injuries suffered by the mother.

The defendant moved to dismiss the third cause of action on the ground it failed to state a cause of action (CPLR 3211, subd. (a), par. 7) and Special Term denied the motion. Thereafter, at an examination before trial, the mother indicated that she had not actually seen her...

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