Donah v. Champlain Valley Physicians Hospital Medical Center

74 A.D.2d 968, 426 N.Y.S.2d 173, 1980 N.Y. App. Div. LEXIS 10785

Opinion

Appeal from an order of the Supreme Court at Special Term, entered August 9, 1979 in Clinton County, which dismissed the second, third and fifth causes of action of plaintiffs’ complaint against defendant Champlain Valley Physicians Hospital Medical Center. The complaint in this action is primarily based on theories of malpractice. The second cause of action is one for assault against the defendant hospital for the action of a physician in inserting a tube into the infant plaintiff’s throat shortly after birth. The third cause of action is the parents’ derivative claim arising from the assault. The fifth cause of action is one for breach of contract by the defendant hospital. Special Term correctly dismissed these three causes of action. Nothing contained in the record establishes a relationship that would permit the defendant hospital to be cast in damages for acts of the defendant physician (Kimball v Scors, 59 AD2d 984). Furthermore, the complaint is barren of any allegation of a special contractual obligation to support a cause of action for breach of contract (Sala v Tomlinson, 73 AD2d 724; Peri v State of New York, 66 AD2d 949). Order affirmed, with costs. Sweeney, J. P., Kane, Staley, Jr., Casey and Herlihy, JJ., concur.