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Villa v. Marciano

167 A.D.2d 828 Court N.Y. App. Div. Decision date 1990-11-16 English

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Majority

p. 828
Elaine Villa, Respondent-Appellant, v Orry Marciano et al., Respondents, and Park Ridge Hospital, Inc., et al., Appellants-Respondents.

Order unanimously affirmed with

p. 829
out costs. Memorandum: In this medical malpractice action, plaintiffs complaint alleges that defendants negligently rendered medical treatment to her for abdominal pain at the emergency room of the Park Ridge Hospital on July 29, 1983. Plaintiffs verified bills of particulars identify numerous injuries, including sterility and attendant emotional and mental distress, that she claims she suffered as a result of defendants’ alleged malpractice.

It is well settled that there may be no recovery "for the loss of offspring, as such” (Endresz v Friedberg, 24 NY2d 478 , 488; see, Hahn v Taefi, 115 AD2d 946 , 947). Thus, plaintiff may not recover for the effect of her alleged sterility in depriving her of children or of their companionship (see, Hahn v Taefi, supra, at 947 ). Recovery may be had, however, for physical and mental injuries, including emotional distress, suffered by plaintiff as a consequence of defendants’ breach of duty (see, Tebbutt v Virostek, 65 NY2d 931 ; Hahn v Taefi, supra, at 947 ). Consequently, if plaintiffs alleged sterile condition resulted from injuries that she suffered as a consequence of defendants’ malpractice, she may recover not only for the physical injuries inflicted but also for the mental and emotional distress attending those injuries (see, Endresz v Friedberg, supra, at 487 ; Hahn v Taefi, supra, at 947 ). (Appeals from order of Supreme Court, Monroe County, Cornelius, J.—summary judgment.) Present—Callahan, J. P., Denman, Green, Balio and Davis, JJ.

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