MARACALLO v. BD. OF EDUC. OF THE CITY OF N.Y

Given the undisputed facts, plaintiff's individual claims of emotional distress, caused by the lapse of time in the discovery of her son's body at the bottom of a swimming pool where he drowned while on a school outing, along with other actions by defendant in the aftermath of the accident, fail to state a cause of action in that she does not allege contemporaneous or consequential physical injury ( see Johnson v. State of New York, 37 NY2d 378, 381), or that she was within the zone of danger and that her emotional injuries resulted from contemporaneous observation of serious injury or death caused by defendant's negligence ( Johnson v. Jamaica Hosp., 62 NY2d 523, 526).

Given the tragic circumstances of the decedent's death, we find the court's reduction of the jury's award for his pain and suffering appropriate only to the extent indicated (CPLR 5501 [c]).