Battalla v. State

—•Appeal from an order of the Court of Claims. The Court of Claims has [614] denied the State’s motion to dismiss the claim as a matter of law; but we think the ease is controlled by Mitchell v. Rochester Ry. Co. (151 N, Y. 107) and under the facts alleged, no actionable damage is shown. The basis of the claim is that infant claimant rode in a ski chairlift maintained by the State; that the attendants failed to secure and lock the safety belt on the chair; and that as a result the infant claimant became frightened and shocked, suffering emotional and neurological disturbances, although there was no physical injury suffered in the chairlift. In the Rochester Ry. Co. case the principle is laid down that fright and its consequences caused by negligence in the absence of some physical injury are not actionable. We are of opinion the Court of Claims was required to follow the authority of that case. Although, of course, as it was held in Ferrara v. Galluchio (5 N Y 2d 16) mental suffering and disturbance are a part of damage for physical injury, nothing there decided or said disavows the Rochester Ry. Co. rule. Order reversed and claim dismissed, without costs. Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ., concur. [17 Misc 2d 548.]