Emenike v Ginsburg Dev. Cos., LLC

Emenike v Ginsburg Dev. Cos., LLC 2016 NY Slip Op 06882 Decided on October 20, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 20, 2016
Sweeny, J.P., Renwick, Manzanet-Daniels, Gische, Webber, JJ.
1985 301697/07

[*1]Aghogho Emenike, etc., et al., Plaintiffs-Respondents,

v

Ginsburg Development Companies, LLC, et al., Defendants, Kensington Woods Homeowners Association, Inc., Defendant-Appellant.

Law Office Of Vincent D. McNamara, East Norwich (Anthony Marino of counsel), for appellant.

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondents.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered May 19, 2015, which, to the extent appealed from, denied the motion of defendant Kensington Woods Homeowners Association Inc. (Kensington) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

The record presents triable issues of fact as to whether Kensington either created or had notice of the hazardous condition that caused the death of plaintiffs' decedent, namely, the Norway Spruce that fell on his car and crushed him (see e.g.

Connolly v Incorporated Vil. of Lloyd Harbor, 139 AD3d 656 [2d Dept 2016]; Priore v New York City Dept. of Parks & Recreation, 124 AD3d 749 [2d Dept 2015]). In addition, considering that the autopsy report indicated that the decedent slowly suffocated to death as a result of the tree resting on his head, issues of fact exist regarding whether, during that time, decedent had conscious pain and suffering. Decedent's widow, who raced out of her house to discover her husband crushed by the tree, also has a cognizable claim for negligent infliction of emotional distress arising from being in the "zone of danger" (see Garcia v Lawrence Hosp., 5 AD3d 227 [1st Dept 2004]; Cushing v Seemann, 247 AD2d 891 [4th Dept 1998]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 20, 2016

CLERK