Sala v. Tomlinson
| Decision Date | 06 December 1979 |
| Parties | Mary Ann SALA et al., Appellants, v. David R. TOMLINSON et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Wertime, Robinson & Ries, Cohoes (Michael M. Emminger, Cohoes, of counsel), for appellants.
Carter, Conboy, Bardwell, Case & Blackmore, Albany (Randall J. Ezick, Albany, of counsel), for respondents David R. Tomlinson et al. (Case # 34700).
Donohue, Bohl, Clayton & Komar, Albany (Myron Komar, Albany, of counsel), for respondents David R. Tomlinson et al. (Case # 36020).
Before MAHONEY, P. J., and GREENBLOTT, SWEENEY, KANE and STALEY, JJ.
Appeals (1) from an order of the Supreme Court at Special Term (Cobb, J.), entered April 24, 1979 in Albany County, which granted the motion of the defendant Samaritan Hospital to dismiss the fifth, seventh, ninth and eleventh causes of action in the complaint, and (2) from an order of the Supreme Court at Special Term (Pennock, J.), entered September 8, 1978 in Albany County, which granted the motion of the defendants David R. Tomlinson, David Marshall, Roland Cheung and Tomlinson & Marshall, M.D., P.C., to dismiss the ninth and eleventh causes of action in the complaint, and their motion to dismiss the first, second, third, fourth, fifth, sixth, seventh and tenth causes of action in the complaint, except for those portions thereof which seek financial loss incident to the alleged unsuccessful sterilization operation and the pain and suffering of said unsuccessful operation.
On March 16, 1976, Mary Ann Sala, upon the advice of defendant doctors, underwent a sterilization operation consisting of a bilateral tubal ligation at the Samaritan Hospital. On October 19, 1977, Mary Ann Sala gave birth to her fourth child, Michael Sala.
In December, 1977 plaintiffs instituted this action, alleging 11 causes of action for the recovery of damages by the mother, father, the unwanted child and the child's three siblings. Nothing in the complaint suggests that Michael is other than a healthy, normal child, or that the delivery was other than uneventful.
The first, second, third and fourth causes of action are based upon alleged malpractice and on the lack of informed consent. The fifth, sixth and eighth causes of action are based upon alleged breach of contract. The seventh cause of action alleges a breach of warranty. The ninth cause of action is brought by the sibling brothers for deprivation, and the eleventh cause of action is brought by Michael Sala seeking damages sustained by his birth on October 19, 1977. The tenth cause of action is based on alleged fraud.
On appeal from the order entered April 24, 1979 in favor of the defendant Samaritan Hospital, plaintiffs assert that the fifth and seventh causes of action should not have been dismissed.
The fifth cause of action alleges an agreement to sterilize Mary Ann Sala, and to perform the sterilization procedure in good workmanlike manner, and to exercise the care and skill expected of specialists. The fifth cause of action, while alleging an agreement to sterilize the plaintiff Mary Ann Sala, alleges the breach of the agreement to perform the sterilization procedure in a good workmanlike manner, and to exercise the care and skill expected of specialists. It is further alleged that, as a result thereof, plaintiffs endured physical pain, emotional distress and anxiety all to their substantial damage.
A cause of action based upon a breach of a particular or special agreement is distinguishable from one in malpractice (Robins v. Finestone, 308 N.Y. 543, 127 N.E.2d 330; Colvin v. Smith, 276 App.Div. 9, 92 N.Y.S.2d 794), but in seeking damages for personal injury, an allegation of failure to provide workmanlike medical care in a proper manner is insufficient, for it is merely an attempt to plead as a contract action one which is essentially a malpractice action (cf. Sears, Roebuck & Co. v. Enco Assoc., 43 N.Y.2d 389, 401 N.Y.S.2d 767, 372 N.E.2d 555; Hammer v. Rosen, 7 N.Y.2d 376, 198 N.Y.S.2d 65, 165 N.E.2d 756). The fifth cause of action was properly dismissed.
The seventh cause of action alleges that defendants warranted to plaintiffs that the sterilization procedure was a completely effective means of preventing conception, that plaintiffs consented to the operation on the basis of that promise and that defendants breached their contract with plaintiffs, all to their damage.
Special Term dismissed the seventh cause of action on the ground that no warranty attaches to the performance of a service. New York does not recognize a cause of action based upon breach of warranty arising out of the performance of services (Milau Assoc. v. North Ave. Dev. Corp., 42 N.Y.2d 482, 398 N.Y.S.2d 882, 368 N.E.2d 1247; ...
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