Johnson v. Verrilli

— In a medical malpractice action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Dutchess County (Beisner, J.), dated February 2, 1987, which denied their motion for summary judgment dismissing the complaint. 498 Ordered that the order is modified, by adding a provision thereto providing that the denial of the defendants’ motion for summary judgment is with leave to renew upon completion of discovery; as so modified, the order is affirmed, without costs or disbursements. The allegations contained in the plaintiffs’ verified amended complaint and bill of particulars claiming that the plaintiff mother sustained serious physical injuries as a result of the stillbirth of her child were sufficient to defeat the defendants’ motion seeking dismissal of the plaintiffs’ action for failure to state a viable cause of action under the principles set forth in Tebbutt v Virostek (65 NY2d 931) and its companion cases (see, Vaccaro v Squibb Corp., 52 NY2d 809; Becker v Schwartz, 46 NY2d 401; Farago v Shulman, 104 AD2d 965, affd 65 NY2d 763; Burgess v Miller, 124 AD2d 692; Friedman v Meyer, 90 AD2d 511, appeal dismissed 59 NY2d 763). In view thereof, and particularly in light of the fact that the discovery process herein has not yet commenced, we conclude that the trial court did not err in denying the defendants’ motion at this stage in the proceedings. However, the defendants are hereby granted leave to renew their motion upon completion of discovery. Mollen, P. J., Kunzeman, Weinstein and Rubin, JJ., concur. [See, 134 Misc 2d 582.]