Becker v. Schwartz

• Decision Date: 12 December 1977
• Citation: Becker v. Schwartz, 60 A.D.2d 587, 400 N.Y.S.2d 119 (N.Y. App. Div. 1977)
• Parties: Dolores E. BECKER et al., Appellants, v. Eugene D. SCHWARTZ et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 119

400 N.Y.S.2d 119

60 A.D.2d 587

Dolores E. BECKER et al., Appellants, v.Eugene D. SCHWARTZ et al., Respondents.

Supreme Court, Appellate Division, Second Department.

Dec. 12, 1977.

John Anthony Bonina, Brooklyn, for appellants.

Joseph T. Mirabel, Huntington (Walter F. Wortman, Huntington, of counsel), for respondents.

Before HOPKINS, J. P., and MARGETT, DAMIANI and TITONE, JJ.

MEMORANDUM BY THE COURT.

In an action inter alia to recover damages for medical malpractice, plaintiffs appeal from an order of the Supreme Court, Nassau County, dated October 5, 1976, which granted defendants' motion pursuant to CPLR 3211(subd. (a), par. 7) to dismiss the complaint and each of the four causes of action set forth therein.

Order modified, on the law, by adding to the decretal paragraph thereof, after the words "is granted", the following: "to the extent that the first and second causes of action seek to recover damages as to the claim for psychiatric injuries or emotional distress of plaintiffDolores E. Becker and to the extent that plaintiffArnold Becker's claim for loss of services and medical expenses is based upon such psychiatric injuries, and motion otherwise denied."As so modified, order affirmed, with $50 costs and disbursements.

Assuming, as we must, the truth of plaintiffs' allegations, that defendants were negligent in failing to give the female plaintiff sufficient information concerning her condition and alternatives so that she could reasonably decide whether she was willing to undergo the entire pregnancy and deliver the child or abort the pregnancy (seeHoward v. Lecher, 42 N.Y.2d 109, 112, 397 N.Y.S.2d 363, 365, 366 N.E.2d 64, 65), we hold that it was error to dismiss plaintiffs' third and fourth causes of action (seePark v. Chessin, App.Div., 400 N.Y.S.2d 110(decided herewith)).So much of the first and second causes of action as seek damages for emotional distress were properly dismissed (seeHoward v. Lecher, supra;see, also, Park v. Chessin, supra ).

MARGETT and DAMIANI, JJ., concur.

TITONE, J., concurs in the reasoning and result of the majority as to its dismissal of so much of the first and second causes of action as pertain to psychiatric injuries or emotional distress, and concurs in the result as to the third and fourth causes of action, with the following memorandum, in which HOPKINS, J. P., concurs:

Without withdrawing in any way from the views expressed in my dissent in Park v. Chessin, App.Div., 400...