The majority holding rests entirely on the legal reasoning of the Second Department decision in Brown v New York City Health & Hosps. Corp. (225 AD2d 36 [1996]) and its progeny. Because I believe that Brown represents a departure from common-law principles of tort liability that is more properly left to the State Legislature, I respectfully dissent.
The law in New York on the topic of emotional or psychological injury has been subject to various insults through the years, most of which have been visited upon it not through the evolution of the common law but rather from the courts’ use of imprecise language and various colloquialisms. Clarification rather than repetition or obfuscation is necessary to avoid depriving plaintiffs of rights recognized for decades. Most recently, we held that
“[a]ll there need be to recover for emotional injury ... is breach of a duty owing from defendant to plaintiff that results directly in emotional harm, and ‘evidence sufficient to guarantee the genuineness of the claim’, i.e., an ‘index of reliability,’ such as, for example, contemporaneous or consequential physical injury.” (Garcia v Lawrence Hosp., 5 AD3d 227, 228 [1st Dept 2004] [citations omitted].)
This holding is implicitly limited to those cases where a breach of some duty to the plaintiff results directly in emotional harm suffered by the plaintiff with either no physical injury or slight injury.
It is important to recognize that there are three different broad categories of emotional injury cases. Failure to clearly differentiate which of the three categories the plaintiffs cause of action resides in is the source of some confusion by both the bench and the bar.
In Ferrara v Galluchio (5 NY2d 16, 21 [1958]) the Court first announced in unequivocal terms that emotional injuries are compensable:
*189“Freedom from mental disturbance is now a protected interest in this State. ‘[T]he only valid objection against recovery for mental injury is the danger of vexatious suits and fictitious claims, which has loomed very large in the opinions as an obstacle. The danger is a real one, and must be met. Mental disturbance is easily simulated, and courts which are plagued with fraudulent personal injury claims may well be unwilling to open the door to an even more dubious field. But the difficulty is not insuperable. Not only fright and shock, but other kinds of mental injury are marked by definite physical symptoms, which are capable of clear medical proof. It is entirely possible to allow recovery only upon satisfactory evidence and deny it when there is nothing to corroborate the claim, or to look for some guarantee of genuineness in the circumstances of the case. The problem is one of adequate proof, and it is not necessary to deny a remedy in all cases because some claims may be false. The very clear tendency of the recent cases is to refuse to admit incompetence to deal with such a problem, and to find some basis for redress in a proper case.’ (Prosser on Torts, § 34, pp. 212-213.)”
In Ferrara, the Court allowed a claim for “exceptional mental suffering over the possibility of developing cancer.” (5 NY2d at 22.) The rationale of this line of breach of duty cases has been extended to claims of emotional injury where there was no physical injury to the plaintiff whatsoever. (See Battalla v State of New York, 10 NY2d 237 [1961]; Johnson v State of New York, 37 NY2d 378 [1975]; Lando v State of New York, 39 NY2d 803 [1976].)
The breach of duty line of cases must be distinguished from the second category where the claimed emotional injury results solely from harm inflicted on another and where no duty is owed by the defendant to the party claiming emotional injury. In Tobin v Grossman (24 NY2d 609 [1969]), the Court refused to permit a claim for a mother’s emotional injury suffered upon learning that her child was injured in an automobile accident that the mother did not witness. The Court declined to extend recovery in tort to third persons where both the physical injury or impact and fear of such injury were visited solely upon another.
The third category of cases involves a breach of a duty owed to the plaintiff which results in emotional injury arising out of *190physical injury to a third person. In Howard v Lecher (42 NY2d 109 [1977]), the Court refused to allow a claim for emotional injury brought by parents of a child who died of a disease due to the obstetrician’s failure to test for and diagnose the probability of the child contracting that disease. Although the Court recognized that the doctor owed some duty to the parents, the Court nonetheless held that there could be no recovery for the parents’ emotional distress because the injury was consequential and not direct. (42 NY2d at 112.)
In Howard, the Court reiterated the precedent on recovery for emotional distress and held that when a party’s negligence is directly responsible for a physical injury, the plaintiff may recover for the attendant emotional injury as well as the physical injury; the plaintiff may also recover when there is no physical impact but the party is subjected to fear of physical injury because of defendant’s tortious conduct. Further, the Court reiterated that recovery may be had for emotional harm even in the absence of physical harm or fear of physical injury so long as the emotional harm is “genuine, substantial, and proximately caused by the defendant’s conduct.” (42 NY2d at 111-112 [emphasis added].)
Clearly, the standard of proof by which emotional distress will be determined as “genuine” or “substantial” lies at a different point on the spectrum from the bright-line “objective” and “reasonable” standard used by the Brown court and favored here by the majority. In Ferrara, the Court held that a “guarantee of genuineness” was to be found in the “circumstances of the case.” (Ferrara v Galluchio, supra at 21.) In Johnson, the Court found “especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious.” (Johnson v State of New York, 37 NY2d at 382.)
Genuineness, then, is a question of fact, not a matter of law. (Robert J. Rhee, A Principled Solution for Negligent Infliction of Emotional Distress Claims, 36 Ariz St LJ 805, 832 [2004] [compensable mental injury should be proved by appropriate evidentiary methods including expert testimony, physical symptoms, hospitalization, therapy and fact witnesses], citing Molien v Kaiser Found. Hosps., 27 Cal 3d 916, 929-930, 616 P2d 813, 821 [1980] and Bowen v Lumbermens Mut. Cas. Co., 183 Wis 2d 627, 663-665, 517 NW2d 432, 446-447 [1994, Wilcox, J., concurring].)
By contrast, the objective and reasonable standard embraced today by the majority rejects this essential subjective component. *191It operates, instead, by attaching a label to the mental injury (in this case, the label, “fear of AIDS,” or “AIDS phobia”), and then uses empirical evidence about the underlying physical component to impose an artificial uniformity of mental insult in order to foreclose mental injury claims and thereby limit recovery. It now allows a court to determine as a matter of law, the precise moment in time when a plaintiffs emotional distress is no longer compensable, and therefore, when it must cease. Moreover, contrary to the majority’s observation, there is no existing law in New York that limits recovery for AIDS phobia claims to six months.
To arrive at this point, the majority simply followed the Second Department in Brown, a case where the plaintiff commenced an action for negligent infliction of emotional distress after she was punctured by a negligently discarded needle that had been used on an HIV-positive baby. The Brown court acknowledged that exposure to the disease is a “cause for anxiety” but held that in order to sustain an action to recover for emotional distress, the plaintiff had to show, inter alia, a “likelihood that infection will develop.” (Brown v New York City Health & Hosps. Corp., 225 AD2d at 42, 47.) The Court then looked to a purported medical consensus1 that: “95% of HIV carriers will test positive (seropositive) for the virus within six months of exposure, and it is unlikely that an individual who tests HIV negative more than six months after a potential exposure will become infected with the virus as a result of that exposure.” (225 AD2d at 43.) The Brown court thus concluded that “[a] plaintiffs initial, reasonable fear of contracting AIDS thus becomes unreasonable if more than six months have passed . . . and the plaintiff continues to test negative.” (225 AD2d at 47.) Consequently, recovery of damages was limited to that suffered during this six-month “window of anxiety” period.
The illogic of the Brown decision is as startling as its disregard of the common law. First, if the HIV tests are accurate for 95% of those tested, the corollary is that they are inaccurate for 5 out of every 100 individuals tested. In other words, 5% of those testing negative will actually become HIV positive. The question arises as to what authority, legal or medical, allows a *192court to determine as a matter of law, that a plaintiffs fear of belonging to that 5% group is not genuine, or even reasonable.
Second, if legal standards are to emanate from medical statistics then a more interesting conclusion can be drawn from the majority’s acceptance of Brown’s dictum that “the statistical probability of contracting HIV from a single needle stick, assuming the needle was contaminated, is approximately 0.3 to 0.5%.” (225 AD2d at 47 [emphasis added].) According to those statistics only between 3 to 5 out of 1,000 plaintiffs stuck by a contaminated needle are likely to contract AIDS. The odds of contracting AIDS from a contaminated needle therefore are nowhere near as great as the odds that an HIV test may be inaccurate when it shows a plaintiff to be HIV negative. Yet the former fear of being one of 3 in 1,000 (a .3% chance) is indulged by the law, whereas a plaintiffs fear that he/she is one of 5 in 100 (a 5% chance) to be HIV positive despite tests showing an absence of HIV antibodies is deemed unreasonable, as a matter of law.
The inconsistency simply serves to underscore the axiom that statistical results do not speak to the actual mental state of the individuals being tested. Nor does the Brown court apply any legal standard found either in the common law or statute in determining that a plaintiff is not entitled, as a matter of law, to compensable damages for psychological harm beyond a fixed period of six months. I submit that no such legal standard exists. The Brown court and those jurisdictions that limit recovery for emotional distress to six months have, in effect, judicially, and improperly, imposed a “statute” of limitations on these emotional distress claims. Further, the existing case law in other jurisdictions to which the majority cites involves plaintiffs who, as opposed to the plaintiff in the instant case, were not conclusively determined to have been actually exposed to the AIDS virus.
The Supreme Court specifically rejected such limitation, observing that “[e]motional injuries may occur far removed in time and space from the negligent conduct that triggered them.” (Consolidated Rail Corporation v Gottshall, 512 US 532, 545 [1994].) In Gottshall, the Court appeared as concerned as the majority about limiting liability and weeding out dishonest or spurious claims. But the Court further observed that, in effect, common-law limitations already exist and are “phrase [d]” in terms of proximate causation or in terms of duty owed to certain plaintiffs. (512 US at 546.)
*193In the case at bar, the defendants had a duty to Ms. Ornstein to protect her from harm caused by negligently discarded, contaminated needles. As a result of their breach of duty, Ms. Ornstein suffered emotional harm.2 The defendants’ conduct was the proximate cause of such emotional injury. However, they attempt to limit the plaintiffs recovery by imposing the “window of anxiety” theory on her damages. In so doing, they pigeonhole Ms. Ornstein’s emotional injury as “AIDS phobia,” using statistics about the physical aspects of the underlying disease to place a limitation on her emotional injury.
There is merit in Ms. Ornstein’s assertion that traditional negligent infliction of emotional distress claims “should not be limited by a judicially imposed reasonableness period that takes from the jury the determination of the extent of plaintiffs damages.” Or, as observed by one court:
“the reaction of any claimant who receives a puncture wound from medical waste will be subjective. It will vary in character and intensity with the individual. . . .
“Unavoidably, jury questions are created, not issues to be decided as a matter of law: was plaintiffs reaction a reasonable response to the stimulus? for how long? to what extent?” (Williamson v Waldman, 291 NJ Super 600, 605-606, 677 A2d 1179, 1181-1182 [1996], mod 150 NJ 232, 696 A2d 14 [1997].)
In the case at bar, Ms. Ornstein claims that her emotional distress is not limited to fear of contracting AIDS but that she suffered permanent psychological harm as a result of being punctured by a contaminated needle. Had the majority decided the case according to the “facts peculiar” to it, first, it could have considered that Ms. Ornstein can hardly be described as the type of AIDS-phobic individual whose emotional state, in the words of the majority, “does not correspond to scientifically proven realities” (at 187). Ms. Ornstein worked as a per diem nurse in the emergency room (ER) of Bellevue Hospital on weekends and holidays for 27 years. Although she was not asked at deposition, nor did she so state, there can be little doubt that during that time as an ER nurse she cared for many patients *194who suffered from AIDS. She was aware of the precautions she had to take and, before entering the room of the patient who was dying of AIDS, she put on protective gloves and a mask.
Ms. Ornstein testified at deposition to a traumatizing event. She described how the negligently discarded needle pierced through her double latex gloves like a “fishhook,” entering and exiting her thumb, 1½ inches apart. She testified that she saw the needle was filled with blood, and she started crying hysterically. She further testified that the director of Bellevue’s AIDS services was “extremely concerned because it was a fresh needlestick with fresh blood that had directly injected into me.” Later, she was instructed to increase the dosage of the seven to eight viral medications she was prescribed to treat her HIV exposure because it was learned that the patient had stopped taking his medications, and therefore his viral load was exceptionally high.
As a result of the needle puncture, Ms. Ornstein never returned to work at Bellevue. Additionally, she quit her primary, daytime nursing job and took an administrative position so that she would not come into any contact with patients. Ms. Ornstein claimed that soon after the incident she began having panic attacks which prevented her from leaving the house, sleeping and speaking with people. She stated that she feared getting punctured by another contaminated needle.
The majority, without pointing to any medical or statistical evidence about the improbability of an ER nurse at Bellevue getting stuck by another contaminated needle, simply rejects, as a matter of law, any suggestion of an emotional distress claim that includes mental injury of a permanent, residual type. It asserts that a “claim for post-traumatic stress disorder is simply an end run around the six-month AIDS phobia restriction” (majority op at 186) and opines that allowing a claim beyond six months will simply render meaningless the six-month limitation on recovery.
Given its departure from common-law principles of tort liability, the six-month rule should be rendered meaningless. The “window of anxiety” approach is nothing more than a recently-contrived “compromise between the harshness of precluding total recovery for the fear of AIDS and allowing a fearful plaintiff a windfall.” (Mark McAnulty, Casenote, Shattering the “Reasonable Window of Anxiety”—Recovering Emotional Distress Damages for the Fear of Contracting AIDS, 19 S Ill U LJ 661, 682 [1995].)
*195The majority’s anxiety over the potential for limitless abuse reflects this, but is nevertheless exaggerated, and not novel. New York tort law has long held that
“[although fraud, extra litigation and a measure of speculation are, of course, possibilities, it is no reason for a court to eschew a measure of its jurisdiction. ‘The argument from mere expediency cannot commend itself to a Court of justice, resulting in the denial of a logical legal right and remedy in all cases because in some a fictitious injury may be urged as a real one.’ ” (Battalia v State of New York, 10 NY2d at 240-241, quoting Green v T.A. Shoemaker & Co., Ill Md 69, 81, 73 A 688, 692 [1909].)
For the foregoing reasons, I dissent.
Buckley, P.J., and Tom, J., concur with Marlow, J.; Gonzalez and Catterson, JJ., dissent in a separate opinion by Catterson, J.
Order, Supreme Court, New York County, entered January 9, 2004, reversed, on the law, without costs, defendants’ motion to dismiss any claim for damages sustained more than six months after the incident granted, and the matter remanded for further proceedings.
. At the time of the decision in 1996, courts in other jurisdictions used medical data that varied as to how long a time of negative testing was required before a plaintiff should feel assured he/she was not HIV positive. The window, in fact, appeared to range from six months to a year. (Williamson v Waldman, 150 NJ 232, 251, 696 A2d 14, 23 [1997].)
. This is accepted for the purposes of this appeal since defendants moved to dismiss only any claims for damages sustained more than six months after the needle-stick injury.