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Scalisi v. New York University Medical Center12/6/2005
red in a breach of contract action.
We affirm the grant of summary judgment to defendant dismissing the complaint for the reasons set forth below.
This Court has long held that a claim sounds in medical malpractice when the gravamen of the complaint is negligence in furnishing medical treatment (Payette v Rockefeller Univ., 220 AD2d 69, 71 ; see also Weiner v Lenox Hill Hosp., 88 NY2d 784 ). In this case, plaintiffs' breach of contract complaint clearly alleged negligence in defendant's failure to perform the correct medical procedure in order to avoid the risk of plaintiff wife giving birth to an autistic child. Thus, defendant properly asserted that this is essentially a medical malpractice action and as such is barred by the statute of limitations.
It is also well-established New York law that where a cause of action lies in medical malpractice, a breach of contract action is legally redundant, and may not be pursued unless plaintiff can prove that, within the context of medical treatment, defendant expressed a specific promise to effect a cure or to accomplish some definite result (Winegrad v Jacobs, 171 AD2d 525 , lv dismissed 78 NY2d 952 , citing Mitchell v Spataro, 89 AD2d 599 ).
In this case, the written contract signed by plaintiffs states the precise opposite of what plaintiffs maintain was a representation by defendant that any child resulting from the procedure would be "free of the autistic traits known to be in the family of Bonnie Scalisi." In particular, the agreement categorically states that it is "no contract to cure." Accordingly, even if we accept that defendant made some oral promise regarding the impregnation of plaintiff wife, such representation is inadmissible. The parol evidence rule precludes giving any consideration to prior oral promises that alter or contradict the meaning of a written agreement (see W.W.W. Assoc. v Giancontierri, 77 NY2d 157, 162 ; House v Walch, 144 NY 418 ).
Plaintiffs argue that defendant's oral representation that plaintiff wife's familial history of autism would not affect the child is not a contradiction of the written contract. Plaintiffs contend that the language of the written contract constitutes a disclaimer of responsibility with regard to general statistical inevitabilities but does not specifically disclaim its responsibility for autism occurring "uniquely due to plaintiff wife's genetic tendencies and predisposition to autism." Thus, argue plaintiffs, since the written contract addresses different issues, the oral representation is admissible.
Plaintiffs' argument does not withstand analysis. As defendant properly counters, any representation that plaintiff wife's familial history of autism would not affect the child is tantamount to a representation that letting plaintiff wife carry the child would not result in autism in any child born as a result of the procedure. That, asserts defendant, is precisely and unambiguously what is disclaimed in the written agreement.
We agree. The alleged oral representation is directly at variance with the parties' subsequent written agreement, and is therefore barred by the parol evidence rule (see W.W.W. Assoc. v Giancontierri, 77 NY2d 157, 162 ).
Accordingly, summary judgment to defendant dismissing the complaint is affirmed.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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