WARNOCK v. DUELLO (2006)

Appeal from an order of the Supreme Court (Demarest, J.), entered November 9, 2005 in St. Lawrence County, which granted defendants' motion for partial summary judgment.

 In Sheppard-Mobley v. King, 4 N.Y.3d 627, 797 N.Y.S.2d 403, 830 N.E.2d 301 [2005], the question presented was “whether an expectant mother may recover damages for emotional harm where the alleged medical malpractice causes in utero injury to the fetus, subsequently born alive” (id. at 634, 797 N.Y.S.2d 403, 830 N.E.2d 301).   The Court of Appeals answered that question in the negative (id.).   In the current medical malpractice case, where the child was born alive and died about two hours later, plaintiff (the mother of the deceased child) ostensibly concedes that the facts fall within the parameters of the Sheppard-Mobley holding since she urges that such decision “should be overturned.”   It is, of course, not within our province to grant such relief, which, if persuasive, rests with the Court of Appeals or the Legislature.

 Plaintiff's further argument that defendants did not satisfy their threshold burden of proof on the motion for summary judgment is without merit.   There is no evidence that plaintiff suffered an injury independent of normal child birth and defendants sufficiently established such fact with, among other evidence, the medical records and deposition testimony of plaintiff.   Supreme Court correctly dismissed those causes of action that asserted individual claims by the mother.

ORDERED that the order is affirmed, with one bill of costs.

LAHTINEN, J.

CREW III, J.P., CARPINELLO, MUGGLIN and KANE, JJ., concur.