Nolan v. Merecki

Appeal from an order of the Supreme Court at Special Term (Walsh, Jr., J.), entered October 2, 1981 in Washington County, which granted defendant’s motion to dismiss a portion of plaintiffs’ complaint. Plaintiffs commenced an action to recover money damages for personal injuries to Linda Nolan, derivative losses to her husband, Gary Nolan, and other damages allegedly sustained by plaintiffs as the result of the failure of defendant to perform a successful sterilization operation on January 12, 1979 on plaintiff Linda Nolan. Defendant sought dismissal of the complaint except for those portions seeking financial redress for loss incidental to the alleged unsuccessful sterilization operation and the pain and suffering which the operation caused. Special Term granted the motion and this appeal ensued. Plaintiffs seek reversal of that portion of the order which held that damages for additional medical and surgical care following the failed sterilization operation, including the costs and expenses of prenatal and postnatal care, were not incidental to the alleged unsuccessful sterilization process. This court’s prior decision in Sala v Tomlin-son (87 AD2d 670) is controlling on the issue. Order modified, on the law, by reversing so much thereof as granted defendant’s motion dismissing plaintiffs’ cause of action for additional medical and surgical care, including the costs of and expenses of prenatal and postnatal care, and motion denied with respect to said cause of action, and, as so modified, affirmed, without costs. Kane, J. P., Main, Casey, Mikoll and Yesawich, Jr., JJ., concur.