Vasiu v. Berg

Summary

The Appellate Division, Second Department reversed an order granting summary judgment to defendants in a medical malpractice action brought by parents of a severely disabled child. The court held that expert credibility issues created triable questions regarding liability and that the record raised issues concerning extraordinary expenses causally related to the child's disabilities and not reimbursed by other sources.

Holdings

1. Summary judgment on liability was improper because the plaintiffs' opposing expert affidavit created a credibility battle between the parties' experts, and credibility issues are for the jury.
2. Summary judgment was improper because the record presented a triable issue of fact as to whether the child's medical conditions caused extraordinary expenses, including additional child-care costs and unreimbursed medical-care and equipment costs.
3. Parents may maintain a cause of action on their own behalf for extraordinary costs incurred in raising a child with a disability, subject to proof of duty, breach, proximate causation, and personal pecuniary loss.

Questions Presented

1. Whether defendants were entitled to summary judgment on liability where their expert established a prima facie entitlement to judgment but the plaintiffs' opposing expert created a credibility dispute.
2. Whether defendants were entitled to summary judgment on the plaintiffs' claim for extraordinary expenses associated with raising a child with disabilities.
3. Whether parents may recover extraordinary expenses caused by a child's disabilities when those expenses are personal pecuniary losses, causally connected to the child's condition, and not covered by insurance or public programs.

Disposition

reversed