Opinion
October 16, 1967
In an action to recover damages (1) for personal injuries suffered by the infant plaintiff at the time of his birth, because of defendant's alleged negligence, and (2) sustained by the infant's father for alleged "breach of contract" in connection with the same birth, defendant appeals from an order of the Supreme Court, Kings County, dated February 17, 1967, which denied its motion to dismiss the second cause of action on the ground it is barred by the three-year Statute of Limitations (CPLR 214, subd. 5). Order reversed, without costs, motion granted and the two causes are severed accordingly. The second cause of action is essentially one to recover damages for loss of services and medical expenses, even though it is labelled "breach of contract". The three-year Statute of Limitations (CPLR 214, subd. 5) therefore bars this cause of action ( Gautieri v. New Rochelle Hosp. Assn., 4 A.D.2d 874, affd. 5 N.Y.2d 952; Carr v. Lipshie, 8 A.D.2d 330, affd. 9 N.Y.2d 983). Christ, Acting P.J., Brennan, Hopkins, Benjamin and Munder, JJ., concur.