The Court makes a carve-out to the zone of danger rule: “A plaintiff who experiences emotional distress due to witnessing the death of a family pet in the zone of danger proximately caused by a defendant negligently operating a motor vehicle may file a claim for NIED if the pet was leashed to the plaintiff at the time the negligent act occurred and the plaintiff herself was exposed to danger. In other words, the pet must have been tethered to the plaintiff — the pet was an extension of the human’s presence at the site of the defendant’s negligence.”
DeBlase v. Hill, 2025 NY Slip Op 25156 – Kings Co. Supreme Court 2025:
“AARON D. MASLOW, J.
I. IntroductionPlaintiffs Trevor DeBlase and Nan DeBlase (hereinafter “Plaintiffs,”
“Nan,” and/or “Trevor”), son and mother respectively, commenced the
within action to recover damages resulting from Defendant driver
Mitchell Hill negligently striking and killing Plaintiffs’ dog, Duke
(hereinafter “Duke”) and nearly killing Nan while Nan was walking Duke.
In Motion Sequence No. 1, Plaintiffs seek (1) summary judgment on
liability against Defendant on the grounds that there is no triable
issue of fact; (2) to strike affirmative defenses as to liability; and
(3) to set the matter down for a trial on damages. Defendant cross-move
under Motion Sequence No. 2, seeking to dismiss a portion of Plaintiffs’
complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of
action upon which recovery may be granted. On this issue, the Court
accepted and reviewed amicus briefs regarding whether Plaintiffs’ claim
of negligent infliction of emotional distress (“NIED”) is viable.
As discussed below, Plaintiffs’ motion seeking summary judgment on
liability, to strike affirmative defenses as to liability, and to set
the matter down for a trial on damages is granted.
Additionally, as discussed below, Defendant’s cross-motion seeking to
dismiss a portion of Plaintiffs’ complaint — that portion which seeks
to recover for NIED — pursuant to CPLR 3211(a)(7) for failure to state a
cause of action upon which recovery may be granted is granted in part as against Trevor DeBlase and denied in part as against Nan DeBlase.
On July 4, 2023, Nan was walking her son Trevor’s dog. Nan and Duke, a
four year and seven-month-old Dachshund, were connected via a leash
when they approached the stop sign-controlled intersection of East 64th
Street and Strickland Avenue in Brooklyn (Kings County), New York. After
looking both ways and being assured that no cars were entering or near
the intersection, Nan and her companion Duke exited the sidewalk
intending to cross East 64th Street. Before reaching the other side, Nan
observed a car proceed through the stop sign without stopping and
without use of a directional signal, and turn left onto East 64th
Street. In doing so, Defendant driver struck and killed Duke in front of
Nan and while still connected to her via his leash. (See generally NYSCEF Doc Nos. 11, 19, 20, 29.)
The bill of particulars noted that as a result of Defendant’s negligence, Plaintiffs each suffered:
Mental distress suffered as a result of the wrongful death of a companion animal and loss of a companion animal.
Mental harm inflicted as a result of the wrongful death of a companion animal and loss of a companion animal. (See NYSCEF Doc No. 20 ¶ 5.)
The bill of particulars further noted Nan as having
… suffered mental suffering, as well as emotional and
psychological injury resulting from the wrongful act of Defendant as she
observed the striking of the dog, was physically present in close
proximity of the dog, and was additionally in reasonable fear and danger
of being struck herself (id.).
Plaintiffs subsequently brought this action to recover damages for
personal injuries due to Defendant’s negligence under the theory of
NIED. In addition to emotional damages, Plaintiffs seek compensatory
damages in the sum of $1,979.84, which includes $1,500 for Duke and
$479.84 for veterinary bills. Plaintiffs further move for summary
judgment on liability, and to strike all affirmative defenses as to
liability,[2]
sever the liability portion from the main action, and set the matter
down for a trial on damages. Defendant, however, cross-moves to dismiss
the action based on a failure to state a viable cause of action, arguing
that NIED premised upon witnessing a death is only applicable to
“immediate family” members, not a pet dog.
Plaintiffs assert that Defendant is the sole cause of the subject
accident based on information provided in Nan’s affidavit and a video of
the incident. The video, recorded by a nearby doorbell camera, depicts
Nan and Duke approaching the street, pausing to allow a car to pass, and
then proceeding across the crosswalk with no vehicles present at the
intersection. Nan, with Duke strolling to her left, were more than
halfway across when Defendant approached the intersection and made a
left turn toward them. Nan reacted by running toward the sidewalk, to
remove herself from the path of the car, but Duke was not quick enough
and was struck by Defendant. (See NYSCEF Doc No. 29.)
Nan’s affidavit further claims that while “within the cross-walk,”
she “continued to check for any vehicles and there were none in the
vicinity” (NYSCEF Doc No. 11). The subject vehicle, however, “did not
have any directional signal on,” with Nan further claiming that she
“observed that vehicle proceed through the stop sign without stopping,
making a left turn from Strickland Avenue onto East 64th Street, and
suddenly, and without any warning, strike [her] son’s dog” (id.).
In light of this, Plaintiffs contend that Defendant’s failure to abide
by traffic signals, resulting in Plaintiffs’ harm, constitutes
negligence per se as Defendant violated Vehicle and Traffic Law (“VTL”) §
1146(a) (“every driver of a vehicle shall exercise due care to avoid
colliding with any bicyclist [or] pedestrian upon any roadway”).
Plaintiffs’ argument is based inter alia on Rodriguez v. City of New York (31 NY3d 312 [2018]
[worker not required to demonstrate absence of own comparative fault to
obtain partial summary judgment on issue of liability]). The Court held
that “[p]lacing the burden on the plaintiff to show an absence of
comparative fault is inconsistent with the plain language of CPLR 1412,”
which states that “[c]ulpable conduct claimed in diminution of damages,
in accordance with [CPLR 1411], shall be an affirmative defense to be
pleaded and proved by the party asserting the defense” (Rodriguez v. City of New York, 31 NY3d at 318). Plaintiffs therefore contend that their prima facie
case has been met as Defendant failed to present contradictory evidence
as to how the accident occurred let alone implicate Nan’s comparative
fault.
Defendant claims that Plaintiffs’ motion is premature as Nan has not
yet been deposed and discovery has not been completed. Defendant
contends that summary judgment should be denied as premature where the
movant has yet to be deposed (see NYSCEF Doc No. 26 citing Figueroa v. City of New York, 126 AD3d 438 [1st Dept 2015]), and that Nan must be deposed to determine whether to assert a counterclaim against her (see NYSCEF Doc No. 26, citing Sean v. Negron, 38 AD3d 516
[2d Dept 2007]). Defendant further argues that discovery is still
necessary to ascertain the lighting and weather conditions at the time
of the subject accident; the size and color of the dog; where the dog
was in relation to Nan; whether the dog was visible given lighting
conditions; the dog walker’s conduct; and traffic conditions.
To be entitled to summary judgment on the issue of a defendant’s
liability, a plaintiff does not bear the burden of establishing the
absence of his or her own comparative negligence (see Rodriguez v. City of New York, 31 NY3d 312; Maliakel v. Morio, 185 AD3d 1018, 1019
[2d Dept 2020]). However, the issue of a plaintiff’s comparative
negligence may be decided in the context of a summary judgment motion
where, as here, the plaintiff moves for summary judgment dismissing an
affirmative defense alleging comparative negligence (see Kwok King Ng v. West, 195 AD3d 1006, 1007 [2d Dept 2021]; Hai Ying Xiao v. Martinez, 185 AD3d 1014, 1014 [2d Dept 2020]).
Here, Plaintiffs established their prima facie entitlement to
judgment as a matter of law on the issue of liability. Plaintiffs
contend Defendant breached his duty established under VTL § 1146(a),
which provides, “Notwithstanding the provisions of any other law to the
contrary, every driver of a vehicle shall exercise due care to avoid
colliding with any bicyclist, pedestrian, or domestic animal upon any
roadway and shall give warning by sounding the horn when necessary.”
However, the applicability of this statute is questionable given
Defendant did not collide with Plaintiff Nan, a pedestrian in the
crosswalk. Plaintiff did collide with Duke. Under VTL § 1146(a), a
“domestic animal” is defined as “domesticated sheep, cattle, and goats
which are under the supervision and control of a pedestrian.” Thus, even
if Defendant’s failure to exercise due care led to Duke’s death, Duke
was not in a class protected by the statute.[3]
This Court does find that Defendant breached the following Vehicle and Traffic Law provisions:
• VTL § 1172(a):
(a) Except when directed to proceed by a police officer,
every driver of a vehicle approaching a stop sign shall stop at a
clearly marked stop line, but if none, then shall stop before entering
the crosswalk on the near side of the intersection, or in the event
there is no crosswalk, at the point nearest the intersecting roadway
where the driver has a view of the approaching traffic on the
intersecting roadway before entering the intersection and the right to
proceed shall be subject to the provisions of section...
