GARCIA v. Westchester Bronx Ob/Gyn Group, P.C., et al., Defendants. (2004)

Order, Supreme Court, Bronx County (Howard Silver, J.), entered November 12, 2002, which, inter alia, granted plaintiff's motion for leave to amend her complaint so as to include a cause of action for emotional injury, unanimously affirmed, without costs.

 Plaintiff alleges that defendant hospital brought her day-old baby to her for breast-feeding after she had been medically sedated;  that the sedative caused plaintiff to fall asleep on top of the baby, smothering him to death;  and that defendant was negligent in bringing the baby to plaintiff and then leaving them alone together unsupervised.   We reject defendant's argument that plaintiff has no cause of action for emotional injury under a zone-of-danger theory because she was asleep and therefore did not observe the injury she inflicted, and because she herself was never exposed to an unreasonable risk of bodily harm.   All there need be to recover for emotional injury here is breach of a duty owing from defendant to plaintiff that results directly in emotional harm (Perry-Rogers v. Obasaju, 282 A.D.2d 231, 231, 723 N.Y.S.2d 28, lv. dismissed 96 N.Y.2d 936, 733 N.Y.S.2d 375, 759 N.E.2d 374, 97 N.Y.2d 638, 735 N.Y.S.2d 494, 760 N.E.2d 1290, citing Kennedy v. McKesson Co., 58 N.Y.2d 500, 504, 462 N.Y.S.2d 421, 448 N.E.2d 1332), and “ evidence sufficient to guarantee the genuineness of the claim” (id. at 232, 462 N.Y.S.2d 421, 448 N.E.2d 1332, citing Kaufman v. Physical Measurements, 207 A.D.2d 595, 596, 615 N.Y.S.2d 508), i.e., an “index of reliability,” such as, for example, contemporary or consequential physical injury (id. citing Johnson v. State of New York, 37 N.Y.2d 378, 381, 372 N.Y.S.2d 638, 334 N.E.2d 590).   Nor is medical treatment or psychological counseling essential to the claim, although relevant to damages (Massaro v. O'Shea Funeral Home, 292 A.D.2d 349, 351, 738 N.Y.S.2d 384).   In a case such as this, “there exists ‘an especial likelihood of genuine and serious mental distress, arising from special circumstances' ” (Johnson, 37 N.Y.2d at 382, 372 N.Y.S.2d 638, 334 N.E.2d 590, quoting Prosser, Torts § 54, at 330 [4th ed] ), which, by themselves, provide the necessary index of reliability.