Varone v. Delman

May 1, 2000
Versions:272 A.D.2d 320
707 N.Y.S.2d 879
2000 N.Y. App. Div. LEXIS 4854

—In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Dunn, J.), dated May 26, 1999, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff commenced this action against the defendant physician in 1992 asserting causes of action sounding in negligence and breach of contract. The defendant’s motion to dismiss the complaint was granted to the extent of dismissing the cause of action based on negligence as time-barred. The plaintiff appealed, and this Court affirmed (see, Varone v Delman, 215 AD2d 373). After discovery was conducted, the defendant moved for summary judgment dismissing the cause of action to recover damages based on breach of contract. The Supreme Court granted the motion, and the plaintiff appeals.

A cause of action to recover damages for breach of contract based on medical services rendered by a physician is legally sufficient only when that cause of action is based upon an express special promise to effect a cure or accomplish a definite result (see, Nicoleau v Brookhaven Mem. Hosp. Ctr., 201 AD2d 544; McCarthy v Berlin, 178 AD2d 584; Mitchell v Spataro, 89 AD2d 599). Here, the plaintiff’s allegation that the defendant promised to report to him the results of the colonoscopy but gave him the wrong results is insufficient to support a cause of action alleging breach of contract. Thompson, J. P., Luciano, Feuerstein and Schmidt, JJ., concur.