Caprino v. Silsby

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred insofar as it failed to grant that part of defendant’s motion seeking to dismiss plaintiffs’ first cause of action, for negligent infliction of emotional distress, and fourth cause of action, for derivative damages. In the first cause of action, plaintiff Serafina Caprino alleges that she was working in the front yard of her residence when an automobile owned and operated by defendant jumped the curb, traveled within inches behind her and crashed into plaintiffs’ house. Although she did not see the vehicle until it hit the house, she alleges that the incident caused her to suffer serious shock, anxiety and mental distress. Recovery for emotional distress may not be predicated upon the observation of unintended damage to one’s property (see, Couri v Westchester Country Club, 186 AD2d 712, 715, lv dismissed in part and denied in part 81 NY2d 912; Stahli v McGlynn, 47 AD2d 238, 240; Van Patten v Buyce, 37 AD2d 448, 450, lv denied 30 1079 NY2d 481). Therefore, plaintiffs’ first and fourth causes of action are dismissed. (Appeal from Order of Supreme Court, Chautauqua County, Gerace, J.—Summary Judgment.) Present—Denman, P. J., Green, Fallon, Callahan and Doerr, JJ.