Winegrad v. Jacobs

Mar 19, 1991
Versions:171 A.D.2d 525

Order, Supreme Court, New York County (Helen Freedman, J.), entered on or about November 9, 1990, granting defendant’s motion to dismiss plaintiffs’ first cause of action, unanimously affirmed, without costs.

Plaintiffs assert a breach of contract claim arising from the rendition of medical services. Such claim will not withstand the test of legal sufficiency unless there has been an express special promise to effect a cure or to accomplish some definite result (Mitchell v Spataro, 89 AD2d 599; Monroe v Long Is. Coll. Hosp., 84 AD2d 576; Carr v Lipshie, 8 AD2d 330, affd 9 NY2d 983), otherwise it is a redundant pleading of a malpractice claim (Delaney v Krafte, 98 AD2d 128). Plaintiffs have failed to demonstrate, in opposition to the motion to dismiss, any such express or special promise, and their cause of action sounding in breach of warranty and breach of contract properly was dismissed. Concur — Milonas, J. P., Rosenberger, Asch and Rubin, JJ.