Summary
recognizing right of grandparent to sue therapist for grossly negligent misdiagnosis of sexual abuse
Summary of this case from P.T. v. Richard Hall Com. Mental Health Ctr.Opinion
April 25, 1997
Present — Green, J.P., Pine, Lawton, Doerr and Fallon, JJ.
Order unanimously affirmed with costs. Memorandum: In May 1994 Supreme Court denied defendants' motion to dismiss the complaint for failure to state a cause of action ( Caryl S. v. Child Adolescent Treatment Servs., 161 Misc.2d 563). Two years later, defendants moved for renewal on the ground that one of the cases cited in the court's decision, W.C.W. v. Bird ( 840 S.W.2d 50 [Ct App Tex]), had been reversed on appeal ( Bird v. W.C.W., 868 S.W.2d 767 [Sup Ct Tex]). The court properly exercised its discretion in denying the motion. Although a motion to renew may be "based upon law not previously considered" ( Johnston v. National R.R. Passenger Corp., 161 A.D.2d 288, 289; see, Olean Urban Renewal Agency v. Herman, 101 A.D.2d 712), the Bird case was neither controlling nor essential to the court's denial of the motion to dismiss ( cf., Olean Urban Renewal Agency v. Herman, supra). (Appeal from Order of Supreme Court, Erie County, Howe, J. — Renewal.)