MARACALLO v. BOARD OF EDUCATION OF CITY OF NEW YORK (2005)

Judgment, Supreme Court, Bronx County (Paul A. Victor, J.), entered on or about March 12, 2004, upon a jury verdict in favor of plaintiff as administratrix of the estate of her deceased son and against defendant-appellant Board of Education, as apportioned and reduced by stipulation to the amount of $1 million for pain and suffering, and in favor of plaintiff individually and against defendant-appellant in the amount of $575,000 for her emotional distress claims, unanimously modified, on the law and the facts, to the extent of granting defendant-appellant's motion to set aside the jury's verdict in favor of plaintiff individually and granting judgment in favor of defendant dismissing plaintiff's individual claims, and directing a new trial on the issue of pain and suffering only as it relates to the estate's claims unless, within 30 days of service upon it of a copy of this order, with notice of entry, defendant stipulates to increase the award, as previously apportioned, for pain and suffering in favor of plaintiff as administratrix of the estate to $1,250,000, with interest from June 27, 2002, plus costs and disbursements, and otherwise affirmed, without costs.   In the event defendant so stipulates, the Clerk is directed to enter an amended judgment accordingly.

Given the undisputed facts, plaintiff's individual claims of emotional distress, caused by the lapse of time in the discovery of her son's body at the bottom of a swimming pool where he drowned while on a school outing, along with other actions by defendant in the aftermath of the accident, fail to state a cause of action in that she does not allege contemporaneous or consequential physical injury (see Johnson v. State of New York, 37 N.Y.2d 378, 381, 372 N.Y.S.2d 638, 334 N.E.2d 590 [1975] ), or that she was within the zone of danger and that her emotional injuries resulted from contemporaneous observation of serious injury or death caused by defendant's negligence (Johnson v. Jamaica Hosp., 62 N.Y.2d 523, 526, 478 N.Y.S.2d 838, 467 N.E.2d 502 [1984] ).

Given the tragic circumstances of the decedent's death, we find the court's reduction of the jury's award for his pain and suffering appropriate only to the extent indicated (CPLR 5501[c] ).