| Kubik v Erhart |
| 2010 NY Slip Op 08538 [78 AD3d 905] |
| November 16, 2010 |
| Appellate Division, Second Department |
| Diana Kubik et al., Respondents, v Thomas P. Erhart et al.,Defendants, and Thomas P. Erhart, P.C., et al., Appellants. |
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In an action to recover damages for medical malpractice, etc., the defendants Thomas P.Erhart and Thomas P. Erhart, P.C., appeal, as limited by their brief, from so much of an order ofthe Supreme Court, Suffolk County (Rebolini, J.), dated June 18, 2009, as denied their motionfor summary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
In the instant action, the plaintiffs, who are parents of a severely disabled child, allege thatthe appellants committed medical malpractice in failing to properly diagnose the child's conditionin utero and advise them of their options, resulting in their failure to terminate the pregnancy.The gravaman of the plaintiffs' cause of action is pecuniary loss arising from extraordinary costsincurred in raising a severely disabled child. Their damages are limited to extraordinary expensesincurred by them, over and above expenses in caring for a nondisabled child; the child has nocause of action to recover for his medical expenses (see Alquijay v St. Luke's-RooseveltHosp. Ctr., 63 NY2d 978, 979 [1984]).
On the question of whether the parents incurred extraordinary expenses resulting inpecuniary loss to them, the appellants established their prima facie entitlement to judgment as amatter of law based upon evidence that the parents' expenses were covered by private insuranceand government programs. Since the plaintiffs' recovery is limited to their personal pecuniaryloss, expenses covered by other sources, such as private insurance or public programs, are notrecoverable by them (see Mickens vLaSala, 8 AD3d 453 [2004]; but see Foote v Albany Med. Ctr. Hosp., 71 AD3d 25 [2009]; Mercado v Institute for Urban FamilyHealth, 39 AD3d 409 [2007]). There is no basis for this Court to abandon the positiontaken in Mickens v LaSala (8 AD3d453 [2004]), that expenses covered by other sources are not recoverable.
However, this case is distinguishable from Mickens v LaSala (id.) since thereis evidence in the record which raises a triable issue of fact as to whether the child's extraordinaryspecial needs caused the parents to incur extraordinary expenses, such as increased utility bills,and the cost of special equipment, [*2]which were not reimbursedby other sources (see Mercado v Institute for Urban Family Health, 39 AD3d at 410). Inview of the foregoing, summary judgment was properly denied.
The parties' remaining contentions are without merit or need not be addressed in light of ourdetermination. Rivera, J.P., Chambers, Austin and Sgroi, JJ., concur.