Summary
dismissing claim by plaintiff father where infant's underlying cause of action failed
Summary of this case from I.M. v. United StatesOpinion
June 25, 1990
Appeal from the Supreme Court, Westchester County (Delaney, J.).
Ordered that the order is modified, on the law, (1) by deleting the provision thereof which denied those branches of the defendants' motions which were for summary judgment dismissing the second cause of action, and substituting therefor a provision granting those branches of the defendants' motions, and (2) by deleting the provision thereof which denied those branches of the defendants' motions which were for summary judgment dismissing so much of the third cause of action as seeks to recover damages on behalf of the plaintiff father for loss of the services of the infant Dana Ann Silverstein, and substituting therefor a provision granting those branches of the defendants' motions; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
A review of the record indicates that an issue of fact exists as to whether the plaintiff Mrs. Silverstein sustained independent physical injuries to her person, during childbirth, as a result of the defendants' negligence. Accordingly, the Supreme Court properly denied those branches of the defendants' motions for summary judgment which were to dismiss the first cause of action. If Mrs. Silverstein ultimately prevails on this first cause of action, she may recover damages, inter alia, only for emotional and psychic harm endured by her as a result of the alleged physical injury inflicted upon her because of the defendants' negligence. However, she may not recover for any emotional and psychic harm attendant to the infliction of physical injury upon the infant Dana Ann Silverstein during childbirth, since no such physical injury was substantiated in the plaintiffs' opposition papers (see generally, Tebbutt v Virostek, 65 N.Y.2d 931; Vaccaro v. Squibb Corp., 52 N.Y.2d 809; Bubendey v. Winthrop Univ. Hosp., 151 A.D.2d 713; Bauch v Verrilli, 146 A.D.2d 835; Sceusa v. Mastor, 135 A.D.2d 117; Farago v. Shulman, 104 A.D.2d 965, affd 65 N.Y.2d 763). For the same reason, the plaintiffs' second cause of action, which seeks damages on behalf of the infant Dana Ann Silverstein, must be dismissed.
Finally, so much of the third cause of action as seeks damages on behalf of the plaintiff father for loss of the infant's services, must also be dismissed, inasmuch as it is derivative in nature (Maidman v. Stagg, 82 A.D.2d 299). Mangano, P.J., Thompson, Bracken and Rosenblatt, JJ., concur.