Crew III, J. (dissenting). I respectfully dissent. There is no doubt that if defendant Patricia S. Mackey’s negligent conduct threatened bodily harm to Sherri Malstrom through direct impact on her person and psychic injuries resulted from her contemporaneous observation of serious physical injuries to her brother, Gary, she would be entitled to recover damages for her emotional distress (see, Bovsun v Sanperi, 61 NY2d 219).
I disagree with the majority, however, that on this record there remain questions of fact as to whether Sherri was within the zone of danger entitling her to recover. The uncontroverted evidence established that Mackey’s vehicle was wholly within its own lane of travel when it passed by Sherri whose bicycle was traveling on the shoulder of the road 8 to 10 feet to the right of Mackey’s vehicle. It was not until after the vehicle passed Sherri that it inexplicably veered to the right and struck Gary, some 25 feet ahead of her. This fact pattern is to be distinguished from the classic zone of danger situation illustrated in the Restatement (Second) of Torts where a truck, left unsecurely parked, starts down a hill toward a mother and child who are directly in its path, fortuitously swerves missing the mother, but strikes her daughter causing the mother to suffer severe shock (Restatement [Second] of Torts § 436 [3], comment f).
The majority’s conclusion that there are questions of fact relating to the presence of curves in the road and the speed of Mackey’s vehicle, in my view, is specious. Since this is a motion for summary judgment, presumably plaintiff has bared his proof on the motion. The evidence in the record establishes that the road was straight at the site of the accident and that *1008the vehicle was proceeding "pretty fast” according to Sherri. That evidence lends nothing to plaintiffs contention that Sherri was in the zone of danger. There is indeed a question as to the lighting conditions and whether Mackey’s lights were on. Again, however, resolution of those issues does not bear on whether Sherri was in the zone of danger. There is nothing in this record which suggests that Sherri was exposed to a risk of bodily harm through direct impact on her person by the negligence of Mackey. To the contrary, Mackey’s vehicle passed by Sherri uneventfully and thereafter veered to the right striking Gary. Based upon the evidence before Supreme Court, one can only speculate that Sherri, at some point before Mackey’s vehicle passed her, was in the path of Mackey’s vehicle and was thereby in the zone of danger. I would, therefore, reverse Supreme Court and grant defendants’ motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.