| Jason v Krey |
| 2009 NY Slip Op 01779 [60 AD3d 735] |
| March 10, 2009 |
| Appellate Division, Second Department |
| Karen Jason et al., Appellants, v Lewis Krey et al.,Respondents. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, N.Y. (Allison Graffeo andRichard E. Lerner of counsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice and negligent inflictionof emotional distress, the plaintiffs appeal from an order of the Supreme Court, Kings County(Rosenberg J.), dated December 24, 2007, which granted the defendants' motion to dismiss thecomplaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action.
Ordered that the order is affirmed, with costs.
In April 2003 the plaintiffs appeared for an appointment with the New York UniversitySchool of Medicine program for in vitro fertilization (hereinafter IVF) for the implantation of anembryo which previously had been cryopreserved. During the procedures conducted prior to theimplantation, it was discovered that there was a discrepancy between information verballyprovided by the plaintiff Karen Jason immediately prior to the scheduled implantation and theinformation contained in her records. The embryo implantation was delayed at the defendants'suggestion while an investigation was conducted, which allegedly revealed that the embryo wasin fact the plaintiffs' biological product. The investigation reportedly revealed, however, thatthere were clerical errors in labeling the embryo and inputting information into the defendants'records. Subsequently, the plaintiffs decided not to implant the embryo.
The plaintiffs commenced this action, inter alia, to recover damages for medical malpracticeand negligent infliction of emotional distress. The complaint alleges, among other things, that theplaintiffs suffered unspecified pain and suffering and mental and emotional anguish. Thedefendants [*2]moved to dismiss the complaint pursuant toCPLR 3211 (a) (7) for failure to state a cause of action, arguing that New York law does notpermit recovery for emotional harm unaccompanied by physical trauma. The plaintiffs opposedthe motion, contending that Jason suffered physical trauma from taking the medicationsnecessary to prepare her body to undergo IVF, which could have been avoided had thedefendants timely detected and disclosed their alleged mislabeling of the embryo. The SupremeCourt granted the defendants' motion. We affirm.
"In reviewing a motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure tostate a cause of action, the facts as alleged in the complaint must be accepted as true, the plaintiffis accorded the benefit of every possible favorable inference, and the court's function is todetermine only whether the facts as alleged fit within any cognizable legal theory" (Martin v New York Hosp. Med. Ctr. ofQueens, 34 AD3d 650, 650-651 [2006]). Under this standard, the complaint fails tostate a cause of action.
"[T]he 'circumstances under which recovery may be had for purely emotional harm areextremely limited and, thus, a cause of action seeking such recovery must generally be premisedupon a breach of a duty owed directly to the plaintiff which either endangered the plaintiff'sphysical safety or caused the plaintiff fear for his or her own physical safety' " (Creed vUnited Hosp., 190 AD2d 489, 491 [1993], quoting Lancellotti v Howard, 155 AD2d588, 589-590 [1989]). Here, the complaint alleges in conclusory fashion that Jason sufferedphysical injury. Furthermore, the plaintiffs' allegation in opposition to the motion that Jasonsuffered physical trauma due to the side effects of the medications taken in preparation for theIVF procedure is insufficient to sustain the complaint because the alleged physical discomfort orharm was a necessary component of the IVF procedure which Jason would have suffered even inthe absence of any alleged negligence (see id.).
The plaintiffs' remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the defendants' motion to dismiss thecomplaint. Rivera, J.P., Florio, Dickerson and Chambers, JJ., concur.