Opinion
2013-01-23
Elena NADAL, respondent, v. Ana M. JARAMILLO, appellant.
Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge, N.Y. (Scott G. Christesen of counsel), for appellant. Michael A. Cervini, Elmhurst, N.Y. (Robin Mary Heaney of counsel), for respondent.
Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge, N.Y. (Scott G. Christesen of counsel), for appellant. Michael A. Cervini, Elmhurst, N.Y. (Robin Mary Heaney of counsel), for respondent.
RUTH C. BALKIN, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
In an action, inter alia, to recover damages for medical malpractice, the defendant appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), dated March 15, 2012, which granted the plaintiff's motion to restore the action to the trial calendar and denied her cross motion to dismiss the complaint.
ORDERED that the order is reversed, on the law, with costs, the defendant's cross motion to dismiss the complaint is granted, and the plaintiff's motion to restore the action to the trial calendar is denied as academic.
The plaintiff, after undergoing a CT-scan, learned that she was pregnant, and thereafter commenced this action against her physician, alleging, among other things, that the physician knew that the plaintiff was pregnant, but failed to inform her of that fact, and nonetheless conducted a CT-scan. As made clear in the plaintiff's bill of particulars, the plaintiff sought to recover damages from the defendant solely for the emotional distress arising from her fear that the CT-scan might have harmed her unborn child. No claim was asserted that either the plaintiff or her child actually suffered any physical injury.
A court deciding a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action must accept the allegations in the complaint as true and accord the plaintiff every possible favorable inference from them. The motion must be granted when the allegations and inferences do not fit within any cognizable legal theory ( see Jason v. Krey, 60 A.D.3d 735, 736, 875 N.Y.S.2d 194;Martin v. New York Hosp. Med. Ctr. of Queens, 34 A.D.3d 650, 650–651, 826 N.Y.S.2d 85).
New York courts have been reluctant to recognize claims grounded in negligence when the damages are solely emotional ( see Broadnax v. Gonzalez, 2 N.Y.3d 148, 153, 777 N.Y.S.2d 416, 809 N.E.2d 645;Cohen v. Cabrini Med. Ctr., 94 N.Y.2d 639, 644, 709 N.Y.S.2d 151, 730 N.E.2d 949;Creed v. United Hosp., 190 A.D.2d 489, 491, 600 N.Y.S.2d 151). While in some cases, which involve allegations that are not present here, a cause of action sounding in negligence may lie solely to recover damages for emotional injuries in the absence of physical harm ( see Martinez v. Long Is. Jewish Hillside Med. Ctr., 70 N.Y.2d 697, 699, 518 N.Y.S.2d 955, 512 N.E.2d 538;Battalla v. State of New York, 10 N.Y.2d 237, 238–239, 219 N.Y.S.2d 34, 176 N.E.2d 729), no New York case has recognized a theory of recovery so broad as the plaintiff asserts here ( see Lancellotti v. Howard, 155 A.D.2d 588, 589–590, 547 N.Y.S.2d 654). Essentially, the plaintiff contends that she is entitled to recover damages for emotional distress, because, as a result of the defendant's alleged negligent failure to inform her that the she was pregnant, she feared that her unborn child might be harmed ( see Jason v. Krey, 60 A.D.3d at 736–737, 875 N.Y.S.2d 194;Brennan v. Shulman, 304 A.D.2d 695, 759 N.Y.S.2d 102). No such claim is recognized under New York law ( cf. Sheppard–Mobley v. King, 4 N.Y.3d 627, 637–638, 797 N.Y.S.2d 403, 830 N.E.2d 301). Accordingly, the complaint failed to state a cause of action, and the Supreme Court should have granted the defendant's cross motion to dismiss the complaint ( see Creed v. United Hosp., 190 A.D.2d at 492, 600 N.Y.S.2d 151).
Inasmuch as the defendant's cross motion to dismiss the complaint should have been granted, the plaintiff's motion to restore the action to the trial calendar must be denied as academic ( see Ingram v. Long Is. Coll. Hosp., 101 A.D.3d 814, 956 N.Y.S.2d 107;Kuffour v. Whitestone Constr. Corp., 94 A.D.3d 706, 707, 941 N.Y.S.2d 653).
In light of our determination, we need not address the defendant's remaining contention.