Bintou Bouare, as Temporary Administrator of the Estate of D.M., a deceased minor child of Bintou Bouare, and Bintou Bouare, individually, Plaintiff, v. Anthony Kier Bonaparte and Tiffany G. Brown, Defendants. (2024)

The following papers were read on this motion (Seq. 1) for ATTORNEY - WITHDRAW submitted on February 26, 2024.

Order to Show Cause - Exhibits and Affidavits Annexed No(s). 16-29

Answering Affidavits and Exhibits No(s). 30-36

Replying Affidavit and Exhibits No(s). 37-39

Upon the foregoing papers, outgoing counsel LAW OFFICES of JAIME E. GANGEMI, moves via Order to Show Cause for an Order to withdraw as counsel to defendants Anthony Kier Bonaparte and Tiffany G. Brown. Plaintiff opposes.

LAW OFFICES of JAIME E. GANGEMI moves this Court to withdraw as counsel for defendants as defense of this lawsuit was provided to defendants by Motor Vehicle Accident Indemnification Corporation (MVAIC), which provides benefits to innocent victims of motor vehicle accidents involving uninsured motor vehicles. Outgoing counsel states that the injuries alleged by deceased plaintiff D.M. qualified defendants for use of their services and deceased plaintiff's claims have since settled. Therefore, outgoing counsel alleges that the remaining claims in the action, as to plaintiff Bintou Bouare (hereinafter "Bouare") are not injuries as a result of a motor vehicle accident and thus do not qualify for MVAIC representation of defendants.

In opposition, plaintiff Bouare argues that she filed an affidavit with MVAIC that stated she was filing a claim for psychological injuries sustained as a result of the subject accident. Plaintiff Bouare alleges that she was feeding her child, deceased plaintiff D.M., who was in a stroller, when the stroller and D.M. were struck by the vehicle owned by defendant Tiffany G. Brown and operated by defendant Anthony Kier Boneparte. Plaintiff argues that her psychological injury and the fact that she timely provided MVAIC with the required notice of intention to make claim form, are sufficient to require MVAIC's continued involvement in this action.

New York Insurance Law § 5208 provides in pertinent part "The protection provided by the corporation on account of motor vehicle accidents caused by financially irresponsible motorists shall be available to (1) Any qualified person having a cause of action because of death or bodily injury, arising out of a motor vehicle accident " Plaintiff Bouare is claiming a psychological injury and argues this injury is a bodily injury. Outgoing counsel argues that plaintiff Bouare's claim is outside of MVAIC coverage because she does not have any supporting proof of injury as a result of the subject accident.

"Bodily injury" is not defined within the New York Insurance Law statute and is left ambiguous as to whether it encompasses emotional or psychological injuries as well as physical injuries. The Court of Appeals has held that, where an insurance policy was ambiguous as to the definition of "bodily injury," it would be read to include purely emotional distress (see Lavanant v. General Acc. Ins. Co. of America, 79 NY2d 263 [1992]; Tortoso v. MetLife Auto & Home Ins.Co., 21 AD3d 276 [1st Dept. 2005]). Further, the First Department held, "Where a policy provides coverage for 'bodily injury,' such coverage encompasses a claim for 'purely emotional distress'," (Tortoso v. MetLife Auto & Home Ins. Co., 21 AD3d 276,278 [1st Dept. 2005]).

These holdings are consistent with the zone-of-danger theory of liability which "allows one who is threatened with bodily harm in consequence of the defendant's negligence to recover for emotional distress resulting from viewing the death or serious physical injury of a member of his or her immediate family," (Bovsun v. Sanperi, 61 NY2d 219, 228 [1984]). Under the zone-of-danger theory of liability, "[t]he emotional injury must not only be serious and verifiable but also tied, as a matter of proximate causation to the observation of the serious injury or death of the family member and such injury or death must have been caused by the conduct of the defendant," (Stamm v. PHH Vehicle Managemetn Services, LLC, 32 AD3d 784, 786 [1st Dept. 2006]). Plaintiff Bouare states in her deposition that she is the victim's mother, and that she was bent over her child's stroller, feeding her child at the time of the accident (see NYSCEF Doc. No.25, Exh. H, Pg. 29-30). She further states that she saw a psychologist for nearly one year and took over the counter sleeping aids to help her sleep (Id. at 45-46). Plaintiff Bouare testified that, following the accident, she spent around two months in her room unable to do anything, including care for her son, and that her family did everything for her (Id. at 49-51). At the time of her deposition, she stated that "driving or crossing the road I am always afraid with my children," (Id. at 49).

Accordingly, this Court finds that a purely psychological injury is within the meaning of "bodily injury" as it pertains to MVAIC. Since plaintiff Bouare may still have a claim for psychological injuries in connection to the subject accident, this motion is denied.

Accordingly, it is hereby

ORDERED, that the application by LAW OFFICES of JAIME E. GANGEMI, to be relieved as counsel for the defendants in this matter is denied, and it is further

ORDERED, that all other branches of the motions are otherwise denied.

This Constitutes the Decision and Order of the Court.

Dated: October 11, 2024

Hon. BIANKA PEREZ, J.S.C.

Bianka Perez, J.