Greene v. Esplanade Venture Partnership

• Citation: 172 A.D.3d 1013,101 N.Y.S.3d 99
• Decision Date: 15 May 2019
• Docket Number: Index No. 510780/15,2017–02080
• Parties: Stacy GREENE, etc., et al., Respondents, v. ESPLANADE VENTURE PARTNERSHIP, et al., Appellants, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

172 A.D.3d 1013

101 N.Y.S.3d 99

Stacy GREENE, etc., et al., Respondents,

v.ESPLANADE VENTURE PARTNERSHIP, et al., Appellants, et al., Defendant.

2017–02080

Index No. 510780/15

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 25, 2018

May 15, 2019

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries and wrongful death, the defendant Esplanade Venture Partnership appeals, and the defendants Blue Prints Engineering, P.C., and Maqsood Faruqi separately appeal, from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated December 12, 2016. The order, insofar as appealed from, granted that branch of the plaintiffs' motion which was for leave to amend the amended complaint to add a cause of action sounding in negligent infliction of emotional distress.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs to the appellants appearing separately and filing separate briefs, and that branch of the plaintiffs' motion which was for leave to amend the amended complaint to add a cause of action sounding in negligent infliction of emotional distress is denied.

On May 17, 2015, debris consisting of "masonry, stucco and/or concrete" allegedly fell from the facade of a commercial building located at 305 West End Avenue in Manhattan. The falling material struck and killed Greta Devere Greene (hereinafter the decedent), who was two years old, and injured her grandmother, the plaintiff Susan Frierson. The plaintiff Stacy Greene, as administrator of the decedent's estate, and Frierson commenced this action against the defendants, asserting two causes of action sounding in negligence and wrongful death.

Approximately nine months after the commencement of this action, the plaintiffs moved, inter alia, for leave to amend the amended complaint to add a cause of action on behalf of Frierson sounding in negligent infliction of emotional distress. The proposed cause of action, denominated in the proposed second amended complaint as the fourth cause of action, alleged that Frierson "was present with [the decedent], and she observed the accident while within the ‘zone of danger’ of said accident," and that Frierson "sustained a severe shock to her nervous system, was caused to suffer severe mental anguish as a result thereof and feared the imminent injuries and death of her granddaughter." In an affidavit in support of the motion, Frierson averred that she had a close relationship with the decedent and watched her regularly while her parents were at work.

The defendant Esplanade Venture Partnership, and the defendants Blue Prints Engineering, P.C., and Maqsood Faruqi (hereinafter collectively the defendants), separately opposed the motion, arguing that Frierson and the decedent were not "immediate family" members and, thus, Frierson could not maintain a cause of action sounding in negligent infliction of emotional distress. The Supreme Court, inter alia, granted that branch of the plaintiffs' motion which was for leave to amend the amended complaint to add a cause of action sounding in negligent infliction of emotional distress. The defendants appeal.

Although leave to amend a pleading should generally be freely granted in the absence of prejudice or surprise to the opposing party (see CPLR 3025[b] ; Sudit v. Labin, 148 A.D.3d 1073, 50 N.Y.S.3d 430 ), the motion to amend should be denied where the proposed amendment is palpably insufficient or patently devoid of merit (see e.g. Jones v. LeFrance Leasing Ltd. Partnership, 127 A.D.3d 819, 7 N.Y.S.3d 352 ; Hylan Elec. Contr., Inc. v. MasTec N. Am., Inc., 74 A.D.3d 1148, 903 N.Y.S.2d 528 ; Greco v. Christoffersen, 70 A.D.3d 769, 896 N.Y.S.2d 363 ). For the reasons that follow, the proposed amendment was patently devoid of merit, and leave to amend should have been denied.

In Bovsun v. Sanperi , 61 N.Y.2d 219, 224, 473 N.Y.S.2d 357, 461 N.E.2d 843, the Court of Appeals held that a plaintiff may recover damages for emotional distress "occasioned by his [or her] witnessing injury or death caused by the defendant's conduct to a member of the plaintiff's immediate family " (emphasis added). Bovsun stands for the proposition that spouses and their children are immediate family members (see id. at 233–234, 473 N.Y.S.2d 357, 461 N.E.2d 843 ). In a footnote, the Court of Appeals stated: "Inasmuch as all plaintiffs in these cases were married or related in the first degree of consanguinity to the injured or deceased person, we need not now decide where lie the outer limits of ‘the immediate family’ "( id. at 233 n. 13, 473 N.Y.S.2d 357, 461 N.E.2d 843 ).

Subsequently, in Trombetta v. Conkling , 82 N.Y.2d 549, 551, 605 N.Y.S.2d 678, 626 N.E.2d 653, the Court of Appeals held that a niece could not recover damages for negligent infliction of emotional distress for witnessing the death of her aunt, despite the fact that the niece's mother had died when the niece was 11 years old, and the aunt had allegedly been the maternal figure in the niece's life. At the time of the accident, the plaintiff was 37 years old and her aunt was 59 years old (see id. at 551, 605 N.Y.S.2d 678, 626 N.E.2d 653 ). In rendering its determination, the Court of Appeals stated: "On firm public policy grounds, we are persuaded that we should not expand the cause of action for emotional injuries to all bystanders who may be able to demonstrate a blood relationship coupled with significant emotional attachment or the equivalent of an intimate, immediate familial bond" ( id. at 553, 605 N.Y.S.2d 678, 626 N.E.2d 653 ).

In Jun Chi Guan v. Tuscan Dairy Farms , 24 A.D.3d 725, 806 N.Y.S.2d 713, this Court held that the relationship of grandparent and grandchild does not constitute "immediate family" so as to permit recovery for negligent infliction of emotional distress. In Jun Chi Guan, the plaintiff grandmother was pushing her infant grandson in a stroller, when a truck owned and operated by the defendants struck the stroller, killing the infant (see id. at 725, 806 N.Y.S.2d 713 ). This Court rejected the grandmother's argument that she should be considered immediate family because she was the family member who spent the most time with the infant during his waking hours (see id. at 726, 806 N.Y.S.2d 713 ). Further, this Court held that "it is not appropriate for this Court to expand the class [of persons constituting immediate family] absent further direction from the Court of Appeals or the New York State Legislature" ( id. ).

Accordingly, on constraint of Jun Chi Guan, the plaintiffs' proposed cause of action sounding in negligent infliction of emotional distress was patently devoid of merit and, thus, the Supreme Court should not have granted the plaintiffs leave to amend the amended complaint to assert it (see Jun Chi Guan v. Tuscan Dairy Farms, 24 A.D.3d 725, 806 N.Y.S.2d 713 ; see also Thompson v. Dhaiti, 103 A.D.3d 711, 712, 959 N.Y.S.2d 522 ; Santana v. Salmeron, 79 A.D.3d 1122, 1123, 913 N.Y.S.2d 584 ).

BALKIN, J.P., CHAMBERS and CONNOLLY, JJ., concur.

MILLER, J., dissents, and votes to affirm the order insofar as appealed from, with the following memorandum, in which HINDS–RADIX, J., concurs:

We are called upon in this case to apply a line of precedent that, from its inception until the present day, has been marked by controversy and criticism, and subjected to repeated challenge. This line of cases originally was premised on generalized sentiments of "public policy" which have been so thoroughly rejected that it was long ago considered the "threshing [of] old straw" to dismantle them (Prosser & Keeton, Torts § 54 at 360 [5th ed 1984] ). While I recognize the importance of precedent in our common-law system, the genius of that system lies in its ability to evolve as experience is gained and the expectations of society progress. Indeed, "the common law of this State is not an anachronism, but is a living law which responds to the surging reality of changed conditions" ( Gallagher v. St. Raymond's R.C. Church, 21 N.Y.2d 554, 558, 289 N.Y.S.2d 401, 236 N.E.2d 632 ).

Accordingly, where, as here, a court is asked to mechanically apply a court-made rule that lacks justification in theory, and which, in practice, produces arbitrary and disparate results, it is the duty of the court to inquire into its continued viability and, if appropriate, reformulate the rule or abolish it completely. As the Court of Appeals has recognized, "[w]e act in the finest common-law tradition when we adapt and alter decisional law to produce common-sense justice" ( Woods v. Lancet, 303 N.Y. 349, 355, 102 N.E.2d 691 ).

For the reasons that follow, I conclude that the plaintiffs' proposed fourth cause of action is not palpably insufficient or patently devoid of merit. Accordingly, I vote to affirm the order insofar as appealed from, and must respectfully dissent.

1. Factual and Procedural Background

The plaintiffs alleged that on May 17, 2015, the plaintiff Susan Frierson and her two-year-old granddaughter, Greta Devere Greene, were sitting on an outdoor bench in front of a building located at 305 West End Avenue in Manhattan. While they sat on the bench, they were suddenly struck by falling debris which separated and fell from the fac¸ade of the building. The debris—variously described as "masonry, stucco and/or concrete"—struck Frierson's knee and ankle, and struck her granddaughter in the head.

The plaintiffs alleged that after the debris had fallen, the granddaughter was left lying on the ground in the fetal position. Frierson lifted her granddaughter back onto the bench and tried to call 911, but Frierson was shaking too hard to complete the call. Seeing that her granddaughter was not breathing, Frierson tried to administer mouth-to-mouth resuscitation, but she was unable to do so because her granddaughter's jaw was "locked shut." Frierson eventually was able to stimulate her granddaughter's breathing by blowing air into her nostrils. Paramedics...