Mayzel v. Moretti

• Decision Date: 10 April 2013
• Parties: Meredith MAYZEL, et al., respondents, v. Michael MORETTI, etc., et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 816

962 N.Y.S.2d 656

2013 N.Y. Slip Op. 02379

Meredith MAYZEL, et al., respondents,

v.Michael MORETTI, etc., et al., appellants, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

April 10, 2013.

Heidell, Pittoni, Murphy & Bach, LLP, New York, N.Y. (Daniel S. Ratner of counsel), for appellant Michael Moretti.

Bartlett, McDonough & Monaghan, LLP (Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. [Edward J. Guardaro, Jr., and Adonaid C. Medina], of counsel), for appellant Richmond University Medical Center.

Rosenberg, Minc, Falkoff & Wolff, LLP, New York, N.Y. (Sharon Elmaleh–Schoenman of counsel), for respondents.

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.

In an action to recover damages for medical malpractice, the defendant Michael Moretti appeals, as limited by his brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated November 4, 2011, as denied his second motion for summary judgment dismissing the complaint insofar as asserted against him, and the defendant Richmond University Medical Center separately appeals, as limited by its brief, from so much of the same order as denied that branch of its motion which was for summary judgment dismissing so much of the complaint as alleged that it was vicariously liable for the alleged medical malpractice of the defendant Michael Moretti.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, the second motion of the defendant Michael Moretti for summary judgment dismissing the complaint insofar as asserted against him is granted, and that branch of the motion of the defendant Richmond University Medical Center which was for summary judgment dismissing so much of the complaint as alleged that it was vicariously liable for the alleged medical malpractice of the defendant Michael Moretti is granted.

The plaintiffs allege that the defendant Michael Moretti committed medical malpractice by failing to detect evidence of arterial septal defect on a sonogram of their son performed in utero on June 16, 2008, and in failing to recommend further testing which would have revealed that he suffered from a form of Trisomy 9, a chromosomal disorder which results in dysmorphismsin the skull and nervous system, and mental retardation. The plaintiffs seek to recover certain allegedly extraordinary expenses they will incur to meet their son's special needs.

Moretti and the defendant Richmond University Medical Center (hereinafter RUMC) separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court, inter alia, denied Moretti's second motion, and denied that branch of RUMC's motion which was for summary judgment dismissing so much of the complaint as alleged that it was vicariously liable for Moretti's alleged medical malpractice.

Although a child with a disability may not maintain a wrongful life cause of action, the child's parents may, under certain circumstances, maintain a cause of action on their own behalf to recover the extraordinary costs incurred in raising the child ( see Becker v. Schwartz, 46 N.Y.2d 401, 411–412, 413 N.Y.S.2d 895, 386 N.E.2d 807;DeChico v. Northern Westchester Hosp. Ctr., 73 A.D.3d 838, 840, 900 N.Y.S.2d 743). To succeed on such a cause of action, which “sound[s] essentially in negligence or medical malpractice,” the plaintiffs “must demonstrate the existence of a duty, the breach of which may be considered the proximate cause of the damages suffered by” them ( Becker v. Schwartz, 46 N.Y.2d at 410, 413 N.Y.S.2d 895, 386 N.E.2d 807). Specifically, the parents must establish that malpractice by a defendant physician deprived them of the opportunity to terminate the pregnancy within the legally permissible time period, or that the child would not have been conceived but for the defendant's malpractice( see id.;DeChico v. Northern Westchester Hosp. Ctr., 73 A.D.3d at 840, 900 N.Y.S.2d 743). Further, the claimed damages cannot be based on mere speculation, conjecture, or surmise, and, when sought in the form of extraordinary expenses related to caring for a disabled child, must be necessitated by and causally connected to the child's condition ( see Mickens v. LaSala, 8 A.D.3d 453, 779 N.Y.S.2d 115). The “parents' ‘legally cognizable injury’ is ‘the increased financial obligation arising from the extraordinary medical treatment rendered the child during minority’ ” ( Foote v. Albany Med. Ctr. Hosp., 16 N.Y.3d 211, 215, 919 N.Y.S.2d 472, 944 N.E.2d 1111, quoting Bani–Esraili v. Lerman, 69 N.Y.2d 807, 808, 513 N.Y.S.2d 382, 505 N.E.2d 947). Since the parents' recovery is...