challenge the statement's content had passed because the basis of the objection was readily apparent from the face of the disclosure statement and could have been raised - and potentially cured - before trial."
No, we'll focus on Emenike v. Ginsburg Dev., 2016 NY Slip Op 06882 (1st Dep't 10/20/16), a case where a Norway Spruce fell on decedent's car and crushed him to death. Decedent's widow rushed out of their house to his side, only to witness his suffocation. So, does the widow have a claim for negligent infliction of emotional distress from being in the "zone of danger"?
Yes, says AD1 and gives no further discussion to the subject, other than citing to its decision in Garcia v. Lawrence Hosp., 5 A.D.3d 227 (1st Dep't 2004). In Garcia, plaintiff brought her baby to the hospital for breast-feeding after she had been medically sedated. That sedative caused her to fall asleep on top of the baby and suffocate him during a period of time she had been left alone with the child and unsupervised by the hospital.
While the hospital argued that the mother had no action for emotional injury because she was asleep and not in the zone-of-danger or ever exposed to any bodily harm of her own, the court rejected that construct completely. "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, and 'evidence sufficient to guarantee the genuineness of the claim', i.e., and 'index of reliability,' such as, for example, contemporaneous or conse- quential physical injury." [citations omitted] That standard precisely covers the widow here.