99 A.D.2d 704 | N.Y. App. Div. | 1984
Order, Supreme Court, New York County (Andrew Tyler, J.), entered April 6,1983, which, inter alia, denied defendants’ motion and cross motion to dismiss the plaintiffs’ sixth cause of action, is unanimously reversed, to the extent appealed from, on the law, and the motion and cross motion are granted, without costs. The plaintiffs are three members of the Alquijay family: the infant Lydia Rebeca (Lydia), her mother Josefina Zamora (Josefina) and her father Salome. When Josefina became pregnant with Lydia, she was over 35 years old. During the pregnancy, doctors in the clinic of defendant St. Luke’s-Roosevelt Hospital Center (St. Luke’s) advised Josefina that, in view of her age, she should take an amniocentesis test to determine whether she was carrying a fetus that had been affected by any type of genetic abnormality. Thereafter, St. Luke’s medical personnel withdrew a sample of amniotic fluid from Josefina. Defendant Columbia Presbyterian Medical Center (Presbyterian) did the chromosomal analysis of this fluid. The result indicated that Josefina would give birth to a normal male child. On May 4, 1976 Josefina gave birth to Lydia, who is a female afflicted with Downs Syndrome. In 1982, Josefina and Salome commenced the instant medical malpractice action against St. Luke’s and Presbyterian, on behalf of Lydia and themselves. The complaint contains six causes of action. In lieu of serving and filing an answer, both defendants moved and cross-moved, pursuant to CPLR 3211 (subd [a], pars 5, 7) to dismiss the complaint, upon the basis that the causes of action were either time barred or did not state a cause of action.
