DECISION & ORDER Upon the papers filed in support of the application and the papers filed in opposition thereto, and after hearing oral arguments, it is ORDERED that Plaintiffs’ Motion #006 seeking partial summary judgment against the defendants on the issue of liability is hereby granted. ORDERED that Plaintiffs’ motion #006 seeking to dismiss Defendants’ affirmative defenses alleging comparative negligence, contributory negligence and culpable conduct of the Defendants is hereby granted. ORDERED that Defendants’ Motion #008 seeking summary judgment on the issue of liability and dismissing the complaint as to Plaintiffs You Guang Zhang, Sai Hua Li and Aixian Lu is hereby denied. ORDERED that Defendants’ Motion #008 seeking to dismiss the cause of action for punitive damages is hereby granted. The instant action was filed on August 31, 2019 and amended on September 14, 2019. The Complaint was again amended on August 25, 2020 after a motion was heard by this Court. The Complaint alleges negligence by the Defendants in that, the 4-year old Plaintiff was picked up at his school by Defendants’ school bus. The child’s grandmother, Aixian Lu, waited for a period of time at the predetermined bus stop, however, the bus never arrived at the stop. The child was allegedly left unattended on the school bus, parked inside the bus depot, and subsequently found by police and taken to a hospital, suffering from dehydration. PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON LIABILITY It is well settled that a motion for summary judgment should be granted if “upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” CPLR 3212(b). The proponent of a motion for summary judgment must make a prima facie showing by offering sufficient evidence to eliminate any material issues of fact from the case that as a matter of law the movant is entitled to summary judgment. Winegrad v. NYU Medical Center, 64 NY2d 851, 853 (1985). In order for the court to grant summary judgment, “it must clearly appear that no material triable issue of fact is presented” and it is not for the court to resolve issues of fact, “but merely to determine whether such issues exist.” See Rebecchi v. Whitmore, 172 AD2d 600 [2d Dept. 1991]. “Negligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination.” Ugarriza v. Schmieder, 26 NY2d 471 (1979). The “concept of in loco parentis is the fountainhead of the duty of care owed by a school to its students.” Williams v. Weatherstone, 23 NY3d 384, 403 [2014] citing Mirand v. City of New York, 84 NY2d 44, 49 [1994] (“the duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians.”). In this action, the school bus company, Pioneer, had a duty of care to the students they are transporting and their families, in loco parentis. There are no triable issues of fact that the young child was left in the care of the school bus company and was then left unattended on a school bus due to the negligence of the company and its employees. Therefore, this Court is granting summary judgment on the issue of liability to the Plaintiffs. After finding the Defendants solely liable, the Court is striking the Defendants’ affirmative defenses. The issue of damages, and whether the Plaintiffs suffered any injury arising from the Defendants’ liability, is an issue for the jury to determine. DEFENDANTS’ MOTIONS TO DISMISS CPLR 3211(a)(7) provides that “A party may move for judgment dismissing one or more causes of action asserted against him on the ground that…the pleading fails to state a cause of action.” Courts have repeatedly granted motions to dismiss where the factual allegations in the claim were merely conclusory and speculative in nature and not supported by any specific facts.” See Residents for a More Beautiful Port Washington, Inc. v. Town of North Hempstead, 153 AD2d 727 [2d Dept. 1989]; Stoianoff v. Gahona, 248 AD2d 525 [2d Dept. 1998]. “Upon a motion to dismiss a complaint pursuant to CPLR 3211, a court must take the allegations in the complaint as true and resolve all inferences in favor of the plaintiff.” Morris v. Gianelli, 71 AD3df 965. 967 [2d Dept 2010]. A cause of action for “negligent infliction of emotional distress” has been narrowly recognized in New York State in very limited circumstances. Plaintiffs specifically state in their Complaint: “Under the facts and circumstances of this case, the plaintiffs were in the zone of danger of the defendants’ negligent acts and omissions. It was foreseeable that the defendants’ negligent conduct of leaving a 4-year-old child under their care inside a hot school bus parked in a depot would cause the plaintiffs emotion and/or physical harm.” In the matter of Bovsun v. Sanperi, the Court of Appeals held that, under very limited circumstances, a bystander may recover damages for the emotional distress caused by observing serious physical injury or death to a family member and created what is known as the “Bovsun zone of danger” test. See Bovsun v. Sanperi, 61 NY2d 219 [1984]. In order to establish a claim for negligent infliction of emotional distress under the Bovsun test, the Plaintiff must establish that (1) the defendant breached a duty to the bystander-plaintiff and the defendant’s negligence in the breach of this duty exposed the plaintiff to “an unreasonable risk of bodily injury or death;” (2) the bystander-plaintiff must have contemporaneously observed a serious injury or death; (3) the serious injury or death was one of the bystander-plaintiff’s immediate family members; (4) the bystander-plaintiff must have suffered an emotional injury that is “Serious and verifiable,” and proximately tied to the observation of the serious injury or death; and (5) the defendants’ conduct was a substantial factor in bringing about the injury or death.” See Bovson at 364. A cause of action for negligent infliction of emotional distress must be based on allegations of conduct, “so extreme in degree and outrageous in character as to go beyond all possible bounds of decency, so as to be regarded as atrocious and utterly intolerable in a civilized community…” Wolkstein v. Morgenstern, 275 AD2d 635, 637 [1st Dept. 2000]. “A breach of the duty of care resulting directly in emotional harm is compensable even though no physical injury occurred when the mental injury is a direct, rather than a consequential result of the breach and when the claim possesses some guarantee of genuineness.” Derago v. Ko, 189 AD3d 1352, 1355 [2d Dept. 2020]. In order to sustain a claim for emotional injuries, the claim must “possess some guarantee of genuineness.” Kamdem-Ouaffo v. Pepsico, Inc. 133 AD3d 825, 827 [2d Dept. 2015]. A negligent infliction of emotional distress cause of action must fail where no allegations of negligence appear in the pleadings.” See Borrerro v. Haks Group, Inc. 165 AD3d 1216, 1219 [2d Dept. 2018]. The Plaintiff’s claim for zone of danger fails the Bovsun test. However, this Court finds it just and proper, not to dismiss the entire Fifth Cause of Action for Negligent Infliction of Emotional Distress, but to only strike line #50, where Plaintiff claims the distress as a result of the zone of danger. The Defendants’ actions regarding the alleged incident is considered, by this court, to be atrocious. For the Defendant driver to skip a bus stop, not check the bus for children, and allow several hours to lapse between when the child was reported missing and subsequently found, on the Defendants’ bus, in the Defendants’ bus depot, is intolerable behavior. The child was found, soaked in sweat, and this Court will not speculate what could have happened had the child not been found when he was. This type of business, in a civilized community, had a duty to the entire family, including the child’s parents and grandmother, not to permit this negligent behavior. See Greene v. Esplanade Venture Partnership, 2021 NY Slip Op 01092 [2021]. The family’s claim for emotional injuries clearly possess a guarantee of genuineness as any reasonable person in their shoes would be emotionally impacted by the incident. As a result of the foregoing, the motion to dismiss is denied. PLAINTIFFS’ CLAIM FOR PUNITIVE DAMAGES “An award of punitive damage serves the dual purpose of punishing the offending party for wrongful conduct and deterring others from engaging in similar conduct.” Gomez v. Cabatic, 159 AD3d 62, 72 [2d Dept. 2018]. It is well settled that a demand for punitive damages does not amount to a separate cause of action for pleading purposes. Bader’s Residence for Adults v. Telecom Equipment Corp., 90 AD2d 764 [2d Dept. 1982], However, courts in New York have long recognized that those, “without specifically intending to cause harm, nevertheless engage in grossly negligent or reckless conduct showing an utter disregard for the safety or rights of others, may also be deserving of the imposition of punitive damages.” See Gomez at 73. It is clear from the Complaint, accepting all allegations as true, that punitive damages may be sought on all causes of action due to the reckless conduct of the Defendants. Punitive damages do not constitute its own cause of action but may be sought on the existing causes of action. Therefore, the Court is striking the Cause of Action for punitive damages, but granting Plaintiffs leave to amend the Complaint to include a demand for punitive damages, as just and proper under the circumstances. This constitutes the Decision and Order of this Court. Dated: June 2, 2021
