Heni Sorkin v. S. Lee

Hancock, Jr., J. (dissenting).

I must dissent. The majority agree (citing our decision in Ziemba v Sternberg, 45 AD2d 230) and, indeed, defendant concedes that plaintiffs have stated a valid cause of action in malpractice based upon the allegations of the unsuccessful sterilization operation, defendants’ representation that the procedure had been successfully performed, and plaintiffs’ reliance thereon in resuming marital relations without the use of contraceptives. The established rule which we restated in Ziemba v Sternberg (supra, p 231) is that the “malpractice action being one for…