McCarthy v. Berlin

In an action, inter alia, to recover damages for medical malpractice, the defendant David Wexler appeals, as limited by his brief, from, so much of an order of the Supreme Court, Suffolk County (Underwood, J.), entered January 24, 1990, as denied that branch of his motion which was to dismiss the fifth cause of action in the complaint, which sought damages for breach of contract, insofar as asserted against him.

Ordered that the order is reversed insofar as appealed from on the law, with costs, that branch of the appellant’s motion which was to dismiss the fifth cause of action in the complaint insofar as asserted against the appellant is granted, and the fifth cause of action is stricken as against the defendant Wexler.

"It is well settled that a breach of contract claim in relation to the rendition of medical services by a physician will withstand a test of its legal sufficiency only when based upon an express special promise to effect a cure or to accomplish some definite result” (Mitchell v Spataro, 89 AD2d 599; see also, Robins v Finestone, 308 NY 543; Keselman v Kingsboro Med. Group, 156 AD2d 334, 335-336; Bobrick v Bravstein, 116 AD2d 682, 683). Since the plaintiffs failed to come forth with proof of such an express special promise, the court erred in not dismissing the fifth cause of action asserted in the complaint, which sought damages for breach of contract. Mangano, P. J., Lawrence, Rosenblatt and Copertino, JJ., concur.