Abedin v. Osorio

2023 NY Slip Op 02481

Zainul Abedin, etc., et al., respondents, v. Mauricio E. Palominos Osorio, et al., defendants, Roadtex Transportation Corp., appellant.

No. 2020-06791, Index No. 700110/15

Supreme Court of New York, Second Department

May 10, 2023

Frank A. Polacco & Associates, PLLC (Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, NY [Timothy R. Capowski John F. Watkins, and Joseph J. Beglane], of counsel), for appellant.

Gair Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman &amp Mackauf, New York, NY (Christopher J. Donadio of counsel) for respondents.

VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, JOSEPH A. ZAYAS, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries and wrongful death, etc., the defendant Roadtex Transportation Corp. appeals from an order of the Supreme Court, Queens County (Joseph J. Esposito, J.), entered August 26, 2020. The order, insofar as appealed from, denied that defendant's motion for summary judgment dismissing the cause of action asserted by the infant plaintiff N. N. to recover future medical expenses insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On December 20, 2013, a tractor trailer struck eight-year-old Noshat N. (hereinafter the decedent), resulting in his death. At the time of the accident, the decedent was crossing a street with his sister (hereinafter the infant plaintiff), who was then 10 years old. In January 2015, the infant plaintiff, by her mother and natural guardian, among others, commenced the instant action against, among others, the defendant Roadtex Transportation Corp. (hereinafter Roadtex), the entity that owned the trailer portion of the tractor trailer involved in the accident. The infant plaintiff sought to recover damages for injuries she allegedly sustained while in the "zone of danger" of the accident. The infant plaintiff also sought future medical expenses. Roadtex moved for summary judgment dismissing the cause of action asserted by the infant plaintiff to recover damages for future medical expenses insofar as asserted against it. Roadtex contended that an award of future medical expenses would be speculative and that economic damages are not permitted in cases where a bystander plaintiff asserts that he or she was in the "zone of danger" of an accident. The Supreme Court, inter alia, denied Roadtex's motion. Roadtex appeals.

As the party seeking summary judgment, Roadtex had the burden of establishing its prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324; Winegrad v New York Univ. Med Ctr., 64 N.Y.2d 851, 853). Here, Roadtex failed to meet its burden of showing that economic damages are not permitted in "zone of danger" type cases (see...