You are here: / / Mother Could Not Maintain a Cause of Action for Emotional Harm Based Upon...

Mother Could Not Maintain a Cause of Action for Emotional Harm Based Upon the Death of Her Baby—Although the Baby Was “Pre-Viable” and Unconscious, the Baby Was Born Alive and the Mother Suffered No Independent Injury

The First Department determined mother could not bring a cause of action for emotional harm as a result of the death of her premature baby.  Although the baby was “pre-viable,” the baby was born alive and the mother suffered no independent injury.

The mother’s argument that the fact that the baby was “pre-viable” unconscious and lived for only a few hours distinguished this case from the controlling cases was rejected:

Plaintiff argues that the rationale of Mendez v Bhattacharya (15 Misc 3d 974) should be applied to this case. In Mendez, the infant had an Apgar score of one at one minute and zero at five minutes (15 Misc 3d at 981). It was uncontroverted that “even if there was a technical sign of life due to the lingering heartbeat, the child was not viable, since there was no other sign of life besides the momentary heartbeat” (id. at 982). The infant had no respiration and efforts to resuscitate by mechanical ventilation and CPR were unsuccessful (id. at 981). The court found that under those facts, the presence of a “momentary heartbeat” did not rise to the level of a live birth within the purview of the Broadnax and Sheppard-Mobley decisions, and therefore the plaintiff mother had a viable cause of action for emotional distress (id. at 983).

That is clearly not the situation before us. To accept plaintiff’s contention that, where there is a live birth but the infant never attains consciousness, a mother should be permitted to maintain a cause of action for emotional distress would impermissibly expand the narrow holdings in Broadnax and Sheppard-Mobley. Plaintiff was entitled to bring a wrongful death action on behalf of the estate of the person who was injured, i.e., the infant who survived, albeit briefly … . Levin v New York City Health & Hosps Corp…, 2014 NY Slip Op 05492, 1st Dept 7-24-14

 

You might also like
IN COMPUTING THE AMOUNT OWED IN THIS FORECLOSURE ACTION, THE REFEREE RELIED ON AN AFFIDAVIT FROM A BANK EMPLOYEE WHICH DID NOT INCLUDE THE RELATED BUSINESS RECORDS; THE AFFIDAVIT THEREFORE WAS INADMISSIBLE HEARSAY (SECOND DEPT).
HERE DISCLAIMERS WERE UNNECESSARY BECAUSE THE ACTIVITY WHICH LED TO INJURY WAS NOT WITHIN THE OVERALL SCOPE OF THE POLICY-COVERAGE; HAD THE DISCLAIMERS BEEN BASED UPON AN EXCLUSION FROM COVERAGE, AS OPPOSED TO THE OVERALL SCOPE OF THE COVERAGE, THEY WOULD HAVE BEEN INVALID AS UNTIMELY.
IN THIS CHILD VICTIMS ACT CASE, LONG-ARM JURISDICTION WAS PROPERLY EXERCISED OVER AN OUT-OF-STATE CATHOLIC DIOCESE WHICH EMPLOYED DEFENDANT PRIEST WHO WAS ASSIGNED TO A NEW YORK PARISH (FIRST DEPT). ​
Partial Payment of Monthly Bills Supported Account Stated Cause of Action
PLAINTIFF WAS STRUCK BY A CABLE WHICH WHIPLASHED WHEN A TRUCK RAN INTO IT; THE INDUSTRIAL CODE PROVISION REQUIRING SAFETY MEASURES WHEN WORKING NEAR TRAFFIC APPLIED; THE LABOR LAW 241(6) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).
Punitive Damages Award Not Recoverable in Subsequent “Bad Faith Failure to Settle” Case Against Insurer
PLAINTIFF ALLEGED HE WAS PROVIDED WITH A DEFECTIVE LADDER, QUESTION OF FACT WHETHER THE LADDER WAS A DANGEROUS CONDITION CREATED BY DEFENDANT OR OF WHICH DEFENDANT HAD NOTICE, LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED.
NO NOTICE OF ALLEGED SKIDDING AND SHAKING OF ESCALATOR, RES IPSA LOQUITUR NOT APPLICABLE.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

People Failed to Demonstrate Seizure of Heroin from Defendant’s Impounded... Parole Board’s Role and Court’s Review Role Explained in Depth