FASANO v. “John” Obasaju, etc., Defendant-Appellant.

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Supreme Court, Appellate Division, First Department, New York.

Donna Ays FASANO, et al., Plaintiffs-Respondents, v. Lilian D. NASH, et al., Defendants, “John” Obasaju, etc., Defendant-Appellant.

Decided: April 12, 2001

MAZZARELLI, J.P., ANDRIAS, SAXE, BUCKLEY and FRIEDMAN, JJ. Jay L.T. Breakstone, for Plaintiffs-Respondents. Michael N. Romano, for Defendant-Appellant.

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered on or about March 7, 2000, which, in an action arising out of defendants' mistaken implantation of another woman's embryo into plaintiff's uterus, insofar as appealed from, denied defendant-appellant embryologist's motion to dismiss the complaint as against him for failure to state a cause of action, unanimously affirmed, without costs.

Plaintiffs allege that appellant's negligence in mixing up the embryos caused them to suffer physical and emotional injuries, namely, the need to undergo a Caesarean section due to a twin pregnancy, and the need to make difficult decisions as to whether to carry the fetus that was not theirs to term and whether to give the child up to his biological parents.   That such decisions involved a birth does not necessarily require dismissal of the action (see, Perry-Rogers v. Fasano, 282 A.D.2d 231, 723 N.Y.S.2d 28;  cf., Lynch v. Bay Ridge Obstetrical & Gynecological Assocs., 72 N.Y.2d 632, 635-636, 536 N.Y.S.2d 11, 532 N.E.2d 1239;  Martinez v. Long Is. Jewish Hillside Med. Ctr., 70 N.Y.2d 697, 518 N.Y.S.2d 955, 512 N.E.2d 538;  Becker v. Schwartz, 46 N.Y.2d 401, 412-415, 413 N.Y.S.2d 895, 386 N.E.2d 807).   We have considered appellant's other arguments, including that the chain of causation between his alleged negligence and any post-delivery emotional injuries plaintiffs suffered was broken by plaintiffs' post-delivery actions, and find them unavailing on this motion to dismiss for failure to state a cause of action.