MAHER v. YOON

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

Rebecca MAHER, etc., et al., Respondents, v. Chang N. YOON, etc., et al., Appellants.

Decided: August 26, 2002

CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, ROBERT W. SCHMIDT and SANDRA L. TOWNES, JJ. Feldman, Kleidman & Coffey, LLP, Fishkill, N.Y. (Denise M. Fitzpatrick and Robert Sappe of counsel), for appellant Chang N. Yoon. Phelan, Burke & Scolamiero, LLP, Albany, N.Y. (Marie Flynn Danek and Robin Phelan of counsel), for appellant Vassar Brothers Hospital. Joseph M. Lichtenstein, Long Island City, NY, for respondents.

In an action, inter alia, to recover damages for wrongful death, the defendant Chang N. Yoon appeals, as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Hillery, J.), dated March 9, 2001, as denied that branch of his motion which was to dismiss the fifth and sixth causes of action in the complaint pursuant to CPLR 3211(a)(7) insofar as asserted against him, and the defendant Vassar Brothers Hospital cross-appeals, as limited by its brief, from so much of the same order as denied that branch of its cross motion which was to dismiss the fifth and sixth causes of action in the complaint pursuant to CPLR 3211(a)(7) insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed and cross-appealed from, on the law, with costs, the branches of the motion and cross motion which were to dismiss the fifth and sixth causes of action in the complaint are granted, and the fifth and sixth causes of action in the complaint are dismissed.

In her fifth and sixth causes of action, the plaintiff sought to recover damages for the pain and suffering endured by her deceased newborn (hereinafter the infant), and compensation for the pecuniary losses suffered by the infant's distributees.   However, the evidence in the record establishes that the infant was stillborn.   This evidence includes an autopsy report which described the infant as stillborn and indicated that the infant's lungs were “airless,” the deposition testimony of the plaintiff and her mother to the effect that they never saw the infant show signs of life, and an admission in the plaintiff's bill of particulars that the infant had died “inside of her.”   According to the obstetrical nurse who assisted at the delivery, the infant was silent, grey, flaccid, and without heartbeat or respiration at the moment of separation from the plaintiff.

 The law in this state is well settled that no cause of action lies to recover damages on behalf of a stillborn fetus (see Endresz v. Friedberg, 24 N.Y.2d 478, 301 N.Y.S.2d 65, 248 N.E.2d 901;  Broadnax v. Gonzalez, 251 A.D.2d 440, 675 N.Y.S.2d 547;  Politis v. Pritzker, 249 A.D.2d 529, 671 N.Y.S.2d 357;  LaPage v. DiCostanzo, 194 A.D.2d 977, 599 N.Y.S.2d 190, appeal dismissed 82 N.Y.2d 748, 602 N.Y.S.2d 806, 622 N.E.2d 307, cert. denied 510 U.S. 1178, 114 S.Ct. 1220, 127 L.Ed.2d 566;  Kaniecki v. Yost, 166 Misc.2d 408, 631 N.Y.S.2d 500).

 The affidavit of the plaintiff's medical expert is insufficient to establish that the plaintiff has a viable cause of action to recover damages on behalf of the infant.   The expert conceded that the infant suffered cardiac arrest in utero, and his conjecture that the infant might have had some brain wave activity up to eight minutes after cardiac arrest, and therefore at the time of delivery, is without evidentiary support.   In any event, the legal standard for “fetal death” in New York is not the cessation of brain wave activity.   Rather, fetal death is proved by the absence of heartbeat, lack of pulsation of the umbilical cord, and lack of “definite movement of voluntary muscles” (Public Health Law § 4160[1];  see also People v. Hayner, 300 N.Y. 171, 90 N.E.2d 23).

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