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Scalisi v. New York University Medical Center12/6/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Marlow, J.P., Williams, Catterson, McGuire, JJ.
Index 104357/02
This action for purported breach of contract arose after plaintiffs, Bonnie Scalisi (wife) and Maurice Scalisi (husband), sought the services of defendant, New York University Medical Center (NYU), for in vitro fertilization. Plaintiff wife's family history of autism prompted her and her husband to undergo a procedure whereby her husband's sperm and a donor egg would be used in the in vitro fertilization procedure before the impregnation of plaintiff wife.
Plaintiffs allege that in October 1997, defendant orally assured them that impregnating plaintiff wife rather than a surrogate with the fertilized egg would not result in the birth of a child affected by autism. On or around December 6, 1997, plaintiffs signed a written agreement contracting with defendant for its services of in vitro fertilization and impregnation. The agreement, in relevant part, includes plaintiff wife's consent to be "recipient for eggs donated from another woman." The next sentence is handwritten and states: "Genetic tendencies, predisposition to autism."
In the signed agreement, the plaintiffs further acknowledged that: "within the human population, a certain percentage . . . of children are born with physical and mental defects, and that the occurrence of such defects is beyond the control of physicians . . . . We therefore understand and agree that NYU Medical Center, PIVF and its physicians do not assume responsibility for the physical and mental characteristics of hereditary tendencies of any child born as a result of these procedures" (emphasis added). The agreement also provided that: " his agreement, therefore, is no contract to cure, a warranty of treatment nor a guarantee of conception" (emphasis added).
On July 30, 1998, plaintiff wife gave birth to twins, a boy and a girl. One of the twins allegedly was born with "autistic traits." More than three and one-half years later, on February 15, 2002, plaintiffs commenced a breach of contract action against defendant. The complaint alleged that plaintiffs entered into an "oral contractual agreement with defendant for in vitro fertilization . . . for the sole purpose of having offspring free of autism." The complaint further alleged that defendant breached the contract by specifically violating its purpose when it placed the fertilized egg into the uterus of plaintiff wife rather than a surrogate. Plaintiffs claimed damages of $2 million.
Defendant moved to dismiss on the basis that the action was essentially a medical malpractice action, and not one for breach of contract, and was therefore time-barred by the statute of limitations of two and one-half years (CPLR 214-a). Defendant also argued that the parol evidence rule precludes an action predicated on an alleged oral agreement when a subsequent written agreement on the same subject matter, and in direct contradiction of the purported oral agreement, was signed by plaintiffs.
The motion court determined that the complaint properly pleaded a breach of contract action and so was timely filed. However, the court dismissed the action on the grounds that plaintiffs had not submitted any affidavit in support of their claim and had not verified the complaint. The court further held that the written agreement signed by plaintiffs barred the admissibility of their alleged prior oral agreement with defendant, and that plaintiffs had failed to demonstrate any compensable damages as requi
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