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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 126
B.F., et al.,
            Respondents,
        v.
Reproductive Medicine Associates
of New York, LLP, et al.,
            Appellants.
--------------------------------
No. 127
Marie Dennehy, et al.,
            Respondents,
        v.
Alan B. Copperman, M.D., et al.,
            Appellants.

Case No. 126:
          Caryn L. Lilling, for appellants Reproductive Medicine
Associates of New York, LLP et al.
          Nancy Ledy-Gurren, for appellant Copperman.
          Wendy R. Fleishman, for respondents.
Case No. 127:
          Caryn L. Lilling, for appellants Reproductive Medicine
Associates of New York, LLP et al.
          Nancy Ledy-Gurren, for appellant Copperman.
          James N. LiCalzi, for respondents.

DiFIORE, Chief Judge:
         In Becker v Schwartz, this Court recognized a new cause
of action permitting parents to recover the extraordinary
expenses incurred to care for a disabled infant who, but for a
physician's negligent failure to detect or advise on the risks of
impairment, would not have been born (46 NY2d 401, 410 [1978]).

                             - 1 -
                               - 2 -                Nos. 126 & 127

The issue in these related appeals is whether the statute of
limitations for such an extraordinary expenses claim runs from
the date of the alleged negligence or the date of birth.   We hold
that it is the latter.
                                 I.
          The salient allegations in both cases, which we must
assume to be true in light of their procedural posture, are the
same.   Two couples -- the Dennehys and the Farbers -- sought in
vitro fertilization (IVF) treatment from defendant Dr. Alan
Copperman at defendant Reproductive Medicine Associates of New
York, LLP (RMA).    The couple discussed the possibility of using
an egg donor.   Copperman informed each couple that RMA screened
donor candidates for all known genetic conditions for which
testing is available, but did not state which conditions were
included in the screening.   The couple then matched with an
anonymous egg donor and, after consenting to the IVF procedure,
the plaintiff mother was implanted with fertilized embryos using
the donor eggs.    Pregnancy was confirmed and the couple was
discharged to their obstetrician/gynecologist.   Each plaintiff
mother later gave birth without complications -- the Dennehys had
a single infant and the Farbers had twins.    Following birth,
Copperman learned that the egg donor had tested positive for the
Fragile X trait, a chromosomal abnormality that can result in
intellectual disability and other deficits.    He informed the
couples within one year of the births, and testing later


                               - 2 -
                                - 3 -               Nos. 126 & 127

confirmed that the Dennehys' infant and one of the Farbers' twins
had the full Fragile X mutation.
          The parents commenced separate lawsuits against
Copperman and RMA.1   As relevant here, the complaints allege, in
essence, that defendants failed to timely screen the egg donor
for the Fragile X mutation or to notify plaintiffs that they did
not screen for this trait.   The parents contend these negligent
acts or omissions caused them to consent to the IVF procedure and
go forward with pregnancy, resulting in the parents incurring
extraordinary expenses to care for and treat a child with a
disability.   Defendants moved to dismiss both complaints under
CPLR 3211 (a) (5) and (a) (7), contending, among other things,
that the extraordinary expenses claim is time-barred by CPLR 214-
a, which provides that a 2½-year statute of limitations for
medical malpractice claims runs from "the act, omission or
failure complained of or last treatment where there is
continuous treatment for the same illness, injury or condition
which gave rise to the said act, omission or failure" (CPLR 214-
a).   Defendants argued that the limitations period runs from the
date of the alleged malpractice, which they identified as the
date the embryo was implanted in the mother.   Plaintiffs opposed
the motions to dismiss, contending that the limitations period
started on the date of birth.    It is undisputed that if the


      1
       The Dennehys' complaint also named as a defendant
Reproductive Medicine Associates - International, LLP.

                                - 3 -
                              - 4 -                  Nos. 126 & 127

statute of limitations runs from the date of malpractice, even
assuming the continuous treatment toll extended the date to
plaintiffs' discharge to their obstetrician/gynecologist, the
cause of action would be time-barred.
          In each case, Supreme Court, among other things, denied
the motion to dismiss with respect to the extraordinary expenses
claim.   The court held that the statute of limitations began to
run upon the infant's birth, which rendered both actions timely.
The Appellate Division affirmed, insofar as relevant here (136
AD3d 73 [1st Dept 2015]; 134 AD3d 543 [1st Dept 2015]), and
thereafter granted defendants leave to appeal, certifying the
question whether the orders were properly made.2   We now affirm.
                               II.
          In negligence cases, the statute of limitations
generally begins to run when a cause of action accrues (see Aetna
Life & Cas. Co v Nelson, 67 NY2d 169, 175 [1986]).    Absent
legislative action to the contrary, courts have authority to
determine when a common-law cause of action accrues (see
Fleishman v Lilly & Co., 62 NY2d 888, 891-892 [1984]; see e.g.
Ackerman v Price Waterhouse, 84 NY2d 535, 541-542 [1994]).
          In 1978, this Court recognized a new, narrow cause of
action permitting parents to recover the extraordinary care and


     2
       Since the Farber plaintiffs did not cross appeal, their
argument relating to the portion of the Appellate Division order
dismissing five other causes of action is not before us (see JFK
Holding Co. LLC v City of New York, 21 NY3d 722, 727 [2013]).

                              - 4 -
                               - 5 -                Nos. 126 & 127

treatment expenses "accruing as a consequence of the birth" of a
child with a disability (Becker, 46 NY2d at 412).   This claim,
"founded essentially upon a theory of negligence or medical
malpractice," requires "a duty flowing from defendants to
[plaintiffs] and that the breach of that duty was the proximate
cause of the birth of their infants" (46 NY2d at 412).   The claim
is restricted to those instances in which the plaintiffs can
demonstrate "that but for the defendants' breach of their duty to
advise plaintiffs, the latter would not have been required to
assume these [extraordinary financial] obligations" (46 NY2d at
412-413).    In other words, parents bringing this type of action
may seek to recover only "'the increased financial obligation
arising from the extraordinary medical treatment rendered the
child during minority'" (Foote v Albany Med. Ctr. Hosp., 16 NY3d
211, 215 [2011], quoting Bani-Esraili v Lerman, 69 NY2d 807, 808
[1987]).    No recovery is allowed for any consequent psychic or
emotional damages (46 NY2d at 413), nor may parents recover the
ordinary costs of raising a healthy child born by reason of so-
called wrongful conception (see O'Toole v Greenberg, 64 NY2d 427,
432 [1985]).   The extraordinary expenses claim belongs to the
parents alone -- the child cannot bring a claim for "wrongful
life" (see Becker, 46 NY2d at 411).    This is because, as a matter
of public policy, an infant born in an impaired state suffers no
legally cognizable injury in being born compared to not having
been born at all (id.).


                               - 5 -
                                - 6 -                Nos. 126 & 127

             The question now before this Court is when this
"extraordinary expenses" cause of action accrues -- and
consequently, when the statute of limitations begins to run.3
Defendants argue that the date of malpractice controls while
plaintiffs contend that the cause of action accrues upon the date
of birth.4    The parties agree that the cause of action is
governed by the 2½-year statute of limitations applicable to
medical malpractice actions.     Due to its unique features, we
conclude that the cause of action accrues upon, and hence the
limitations period runs from, the birth of the child.
             A claim accrues "when all of the facts necessary to the
cause of action have occurred so that the party would be entitled
to obtain relief" (Aetna, 67 NY2d at 175; see also Kronos, Inc. v



     3
       This is an issue of first impression in our Court. In
Jorge v New York City Health & Hosps. Corp., the only issue
before us was whether the continuous treatment doctrine tolled
the plaintiff's extraordinary expenses cause of action (79 NY2d
905, 906 [1992]). We did not consider when the cause of action
accrued or whether the lawsuit was otherwise timely. In Pahlad v
Brustman, we affirmed the holding of the courts below that
defendants were not barred by equitable estoppel from asserting a
statute of limitations defense, again without deciding when the
limitations period began to run (8 NY3d 901, 902 [2007]). In
Pahlad, both lower courts had held that the statute of
limitations commenced at the time of the infant's birth (see
Pahlad v Brustman, 33 AD3d 518, 519 [1st Dept 2006], affg Sup Ct,
Bronx County, October 8, 2004, Manzanet-Daniels, J., index no.
26399/2003).
     4
       Neither party argues that the cause of action accrues on
the date when the parents first incur financial costs related to
the care and treatment of their child or the date the malpractice
or the child's impaired state is discovered.

                                - 6 -
                              - 7 -                  Nos. 126 & 127

AVX Corp., 81 NY2d 90, 94 [1993]).     As a general rule, a "legal
right to relief" in a tort action arises when an injury occurs
(Ackerman, 84 NY2d at 541).   To determine when a claim accrues,
we must balance the competing policy considerations of putting to
rest stale claims with ensuring "fairness to the claimant [who]
shall not unreasonably be deprived of [the] right to assert [a]
claim" (Victorson v Bock Laundry Mach. Co., 37 NY2d 395, 403
[1975] [quotation marks and citation omitted]).
          The action's gravamen is that, but for defendants'
negligence, the parents would not have conceived or given birth
to a child requiring extraordinary expenses for treatment and
care.   Plaintiffs allege that, by failing to take steps to detect
that the egg donor was a carrier for Fragile X and therefore that
the embryo may have had the Fragile X trait, defendants left the
parents in an uninformed state as to whether to avert pregnancy
or birth -- and the associated costs resulting from birth.    Given
the nature of these allegations, it follows that until the
alleged misconduct results in the birth of a child, there can be
no extraordinary expenses claim.     Moreover, we have stated that
the "legally cognizable injury" is that the parents will incur
extraordinary expenses to care for and treat the child (Foote, 16
NY3d at 215).   These expenses arise "as a consequence of the
birth" (Becker, 46 NY2d at 412), not just the conception.    Prior
to a live birth, it is impossible to ascertain whether parents




                              - 7 -
                              - 8 -                 Nos. 126 & 127

will bear any extraordinary expenses.5   Due to these unique
circumstances, the cause of action accrues upon the birth of an
infant with a disability.   This date appropriately balances the
competing statute of limitations policy concerns -- it gives
parents a reasonable opportunity to bring suit while at the same
time limiting claims in a manner that provides certainty and
predictability to medical professionals engaged in fertility
treatment and prenatal care (see MRI Broadway Rental v United
States Min. Prods. Co., 92 NY2d 421, 428 [1998]; Victorson, 37
NY2d at 403).
          We respectfully disagree with our dissenting colleague
that Goldsmith v Howmedica, Inc. (67 NY2d 120 [1986]) requires a
different result.   Goldsmith is a classic medical malpractice
case in which a plaintiff, who suffered a physical injury, sued a
doctor for inserting a defective hip prosthetic, seeking pain and
suffering and emotional distress damages, and other relief
recoverable in a personal injury case (67 NY2d at 122).    There,
we reiterated the common-law rule that the "action accrues and
the Statute of Limitations begins to run at the time of the
commission of the alleged malpractice" (67 NY2d at 122).    In
contrast, the instant case involves a distinct cause of action


     5
       Contrary to the dissent's assertion (dissenting op at 2-
3), nothing in our analysis addresses much less restricts which
treatment and care expenses qualify as extraordinary expenses or
decides whether expenses incurred prior to accrual in
anticipation of the special care the child will require could be
covered.

                              - 8 -
                               - 9 -                Nos. 126 & 127

for extraordinary expenses, which we determine -- for the first
time on this appeal -- to accrue on the date of birth.   Our
holding that the limitations period also runs from the date of
birth is consistent with the accrual-based statute of limitations
rule followed in Goldsmith.    There, we rejected plaintiffs'
argument that such a rule "effectively forecloses an action
against the doctor before any injury has been suffered," and,
relying on our precedents, held that the injury in that type of
case occurred on the date of negligence, not when the harmful
effects were felt (67 NY2d at 123-124, see e.g. Thornton v
Roosevelt Hosp., 47 NY2d 780, 781 [1979]).   Here, where the
legally cognizable injury arises as a consequence of the birth,
the limitations period likewise runs from that date.
                                III.
            CPLR 214-a -- which provides that a medical malpractice
action must be commenced within 2½ years of "the act, omission or
failure complained of" -- does not bar this outcome.    Prior to
the enactment of CPLR 214-a in 1975, courts followed the common-
law rule that the statute of limitations in a medical malpractice
action begins to run on the date of the alleged malpractice (see
Davis v City of New York, 38 NY2d 257, 259 [1975]).    This
comported with the associated common-law rule that a medical
malpractice claim accrues on the date of the negligent act or
omission.    In 1969, this Court created an exception to the
accrual-based rule, holding that "where a foreign object has


                               - 9 -
                             - 10 -                Nos. 126 & 127

negligently been left in the patient's body, the Statute of
Limitations will not begin to run until the patient could have
reasonably discovered the malpractice" (Flanagan v Mount Eden
Gen. Hosp., 24 NY2d 427, 431 [1969]).   Following Flanagan, lower
courts moved toward adopting a discovery rather than an accrual
rule more broadly in medical malpractice cases (see Walton v
Strong Mem. Hosp., 25 NY3d 554, 561-562 [2015]).
         The legislature expressed concern that these decisions
had "a potential of bringing virtually all medical malpractice
cases under the discovery rule" (Governor's Program Bill Mem at
4, Bill Jacket, L 1975, ch 109).   To halt this trend, the
legislature enacted CPLR 214-a, which codified the common-law
rule, as applied in a case like Goldsmith, that the limitations
period for medical malpractice begins to run at the time the
cause of action accrues -- the date of malpractice.   This served
to curtail further "judicial expansiveness towards a more
plaintiff friendly discovery rule" (LaBarbera v New York Eye &
Ear Infirmary, 91 NY2d 207, 213 [1998] [emphasis added]; see also
Rodriguez v Manhattan Med. Group, 77 NY2d 217, 221 [1990]).
There is no question that, in the wake of CPLR 214-a and its
companions, the legislature has exclusive authority to determine
when the discovery rather than the traditional rule should apply
(see e.g. CPLR 214-b [agent orange exposure]; CPLR 214-c [toxic




                             - 10 -
                               - 11 -               Nos. 126 & 127

torts]).6   However, nothing in the legislative history suggests
an intent to constrict judicial authority to otherwise define
when a cause of action accrues, or to mandate that the
limitations period should commence prior to accrual.    Following
CPLR 214-a, we have continued to hold that the typical medical
malpractice cause of action accrues at the time of the
malpractice, consistent with the statute (see Massie v Crawford,
78 NY2d 516, 519 [1991]; Nykorchuck v Henriques, 78 NY2d 255, 258
[1991]).    Indeed, we explained in Massie that CPLR 214-a
established that "[a]n action for medical malpractice must be
commenced within two years and six months of the date of
accrual," citing our common-law precedents to show that a
malpractice claim accrues on the date of the alleged malpractice
(78 NY2d at 519).
            Yet this is not the typical medical malpractice case.
Three years after the legislature enacted CPLR 214-a, this Court
recognized for the first time the extraordinary expenses claim,
which, as explained above, cannot accrue until the live birth of
the infant.    Before Becker and prior to CPLR 214-a, we declined
to recognize related causes of action for wrongful life (see
Williams v State of New York, 18 NY2d 481 [1966]) and for medical



     6
       Our holding today does not run afoul of that principle.
As the dissent acknowledges (dissenting op at 10), the rule we
adopt is not a "discovery" rule as the date the parents learn of
the malpractice or the child's disability is irrelevant to the
running of the limitations period.

                               - 11 -
                             - 12 -                    Nos. 126 & 127

malpractice damages on behalf of an infant who is stillborn (see
Endresz v Friedberg, 24 NY2d 478 [1969]).   The legislature could
not have anticipated our holding in Becker.
         This is not the first time that our Court has
confronted a situation that falls outside the contours of CPLR
214-a, and reached a similar result.   In LaBello v Albany Med.
Ctr. Hosp., we addressed when the limitations period starts for a
child's medical malpractice claim for injuries suffered as a
result of faulty prenatal care (85 NY2d 701, 704 [1995]).      This
differs from the parents' extraordinary expenses claim at issue
here in that in LaBello, the child sought damages for her own
injuries and the issue was whether the statute of limitations
could begin to run before the injured party -- there, the child
-- was alive and had the capacity to bring suit.    We determined
that the limitations period started to run at birth rather than
at the time of the alleged malpractice, notwithstanding the
language of CPLR 214-a (85 NY2d at 704).    Although
distinguishable in some respects, LaBello raised the same concern
that "at the time the alleged malpractice was committed,
plaintiff could not have alleged all the elements of the tort in
the complaint," explaining that the case "present[ed] one of
those interstices between statutory and common-law precedential
lines of authority" (85 NY2d at 706-707).     Recognizing that "CPLR
214-a does not encompass and did not contemplate the circumstance
at issue," we held that this Court must "fill the gap by


                             - 12 -
                              - 13 -               Nos. 126 & 127

traditional interpretation and common-law development and
application" (85 NY2d at 706).   We then determined that due to
the specific circumstances of that action, the statute must be
interpreted in a manner that permitted the limitations period to
run from the date of birth -- i.e., the date the claim accrued --
rather than from the malpractice date (85 NY2d at 704).
Otherwise, the statute of limitations would run before the
plaintiffs could bring the suit.   In reaching that conclusion in
LaBello, we did not adopt a new "exception" to CPLR 214-a akin to
the discovery rule.   Rather, we recognized that CPLR 214-a did
"not encompass" an unanticipated situation, and concluded that
the legislature would not have intended the statute of
limitations to begin to run before suit could be brought.
         The case before us likewise requires similar
interpretive measures.   The circumstances here preclude the
parents from bringing the lawsuit until the child is born, and
thus the statute of limitations must run from the date of birth.
This result best harmonizes the unique and unanticipated features
of this cause of action with the principles animating CPLR 214-a.
Thus, because plaintiffs' causes of action for extraordinary
expenses accrued upon the birth of their children, the courts
below properly determined that the claims were timely.
         Accordingly, in each case, the order of the Appellate
Division insofar as appealed from should be affirmed, with costs,
and the certified question answered in the affirmative.


                              - 13 -
B.F. v Reproductive Medicine Assoc.
Dennehy v Copperman
Nos. 126 & 127




GARCIA, J.(dissenting):
         CPLR 214-a provides that a medical malpractice action
"must be commenced" within two-and-a-half years "of the act,
omission, or failure complained of . . ." (CPLR 214-a).   By its
terms, CPLR 214-a's accrual-upon-act-or-omission rule admits of
only two exceptions: the "continuous treatment" exception and the
"foreign object" exception (see CPLR 214-a; see also LaBello v
Albany Med. Ctr. Hosp., 85 NY2d 701, 706 [1995]).
         Today, the majority creates a third exception, holding
that a medical malpractice "wrongful birth" action accrues not on
the date of "the act, omission or failure complained of" (CPLR
214-a), but rather on the date of the child's birth.   Though its
interpretation contravenes the statutory language, the majority
authorizes this deviation in the context of so-called "wrongful
birth" actions because of the "unique features" associated with
those claims (majority op at 6).
         There is no "unique circumstances" exception in
statutory interpretation.   Accordingly, I dissent.
                                I.
         The majority first contends that, "until the alleged
misconduct results in the birth of a child, there can be no


                              - 1 -
                              - 2 -                  Nos. 126 & 127

extraordinary expenses claim" (majority op at 7).    Given this
"unique feature[]," which purportedly "preclude[s] the parents
from bringing the action until the child is born," the majority
concludes that "the statute of limitations must run from the date
of birth" (majority op at 6, 13).     The premise of the majority's
holding, however, is both tenuous and irrelevant.
                                A.
           The majority's assumption that plaintiffs' medical
malpractice claims require a live birth is novel -- and
problematic.   As an initial matter, this Court has never stated
that the "legally cognizable injury" in these actions is limited
to the "costs resulting from birth" (majority op at 7).    Indeed,
in Becker v Schwartz (46 NY2d 401 [1978]), we explicitly declined
to circumscribe the scope of recoverable damages: "There is now
no occasion . . . to determine with particularity what items of
expense or loss may properly be taken into account in computation
of the damages recoverable" (Becker, 46 NY2d at 413).    Nor does
the "legally cognizable injury" in these medical malpractice
actions arise solely "as a consequence of the birth" (majority op
at 9).   Rather, the injury occurs much sooner; as the majority
notes, "[t]he action's gravamen is that, but for defendants'
negligence, the parents would not have conceived . . . a child
requiring extraordinary expenses" (majority op at 7 [emphasis
added]).
           Moreover, the majority's assertion -- that a live birth


                              - 2 -
                                - 3 -               Nos. 126 & 127

is a prerequisite for plaintiffs' claims -- will unfairly and
arbitrarily restrict the scope of recoverable damages in these
types of medical malpractice actions.    Given modern medical
technology, parents may discover a child's disability in advance
of the child's birth and begin incurring expenses -- purchasing
specialized equipment, monitors, clothing, etc. -- in preparation
for the child's arrival.   Under the majority's theory, however,
these costs are not recoverable solely because they are incurred
prior to the child's birth.
         Though the majority asserts that its holding does not
restrict parents from recovering expenses incurred "in
anticipation of" the child's arrival (majority op at 7-8), that
suggestion is undermined by the majority's fundamental holding
that a parent's "legally cognizable injury" does not occur until
the child's birth.   Of course, under basic tort law principles, a
plaintiff cannot recover for damages allegedly incurred prior to
sustaining an injury; a plaintiff's harm cannot proximately flow
from an event that has not yet occurred (see generally
Restatement [Second] of Torts § 902, Comment a ["Damages flow
from an injury"]; see also Ambassador Hotel Co., Ltd. v Wei-Chuan
Investment, 189 F3d 1017, 1028 [9th Cir 1999] [noting that
"events which occur after the injury has occurred cannot be said
to have caused the injury"]).    Moreover, even if pre-injury
damages were somehow recoverable, the clear implication of the
majority's assertion is that a parent who accumulates pre-birth


                                - 3 -
                                - 4 -              Nos. 126 & 127

expenses may recover those costs if and only if the child is born
alive.   As a consequence, a plaintiff-parent could recover pre-
birth expenses if the child survives -- even for only a minute --
but not if the child is stillborn.
                                 B.
          Even assuming that plaintiffs' claims require a live
birth, the majority's theory nonetheless fails because, in
enacting CPLR 214-a, the legislature displaced the courts'
"judicial authority" to implement "common-law rule[s]" of accrual
(majority op at 10-11).   While courts have the authority to
interpret accrual dates "[a]bsent legislative action to the
contrary" (majority op at 4), courts are not free to disregard a
clear statutory prescription.
          Contrary to the majority's claim, there is no
indication that CPLR 214-a merely "codified the common-law rule"
without "constrict[ing] judicial authority to otherwise define
when a cause of action accrues" (majority op at 10-11).   Rather,
in enacting CPLR 214-a, the legislature specifically sought to
"constrict[] judicial expansiveness towards a more plaintiff
friendly . . . rule" (LaBarbera v New York Eye & Ear Infirmary,
91 NY2d 207, 213 [1998] [citation omitted]).   The legislature
passed section 214-a "in response to the medical malpractice
crisis," embodying a "clearly expressed legislative intent that
. . . exception[s] to the general time of the commission accrual
rule not be broadened beyond [their] existing confines"


                                - 4 -
                               - 5 -                 Nos. 126 & 127

(Goldsmith v Howmedica, 67 NY2d 120, 123 [1986] [citations
omitted]).   In other words, the statute's two exceptions --
"continuous treatment" and "foreign object" -- are both narrow
and exclusive; by codifying them, the legislature "limited the
range of common-law development" (LaBarbera, 91 NY2d at 211).
         We have therefore made clear that these exceptions
should not be broadened beyond their terms, and new exceptions
should not be created except by the legislature itself (see id.
at 213; Rodriguez v Manhattan Medical Group, 77 NY2d 217, 224
[1990]; Goldsmith, 67 NY2d at 123).     "[E]fforts to enlarge
the[se] exception[s]," we have said, would "undermine, if not
contradict, the statute and the policy lines and precedents that
have emerged to fix boundaries for this troublesome field"
(LaBarbera, 91 NY2d at 213).   "[T]he Legislature, having
statutorily occupied the field, is more appropriately suited to
effectuate any redefinition or expansion" of these exceptions if,
in the legislature's determination, such a revision is warranted
(id.).
         Nor does the statute purport to preserve the "judicial
authority" that the majority exercises.     CPLR 214-a does not, for
instance, provide that plaintiffs have 2½ years from "accrual"
without defining "accrual" itself.     Instead, the statute
explicitly provides that plaintiffs' malpractice claims "must be
commenced" within 2½ years "of the act, omission or failure
complained of" (CPLR 214-a).   By implementing a judicially-


                               - 5 -
                              - 6 -                 Nos. 126 & 127

crafted "date of birth" accrual rule, the majority contravenes
the plain language of the statute and undermines clear
legislative policy mandating a strict adherence to the statutory
text.
                               II.
          The majority also contends that the legislature "could
not have anticipated our holding in Becker," in which the Court
first recognized a medical malpractice cause of action to recover
the extraordinary expenses incurred by a prospective parent for
the care and treatment of their child (majority op at 11).     As a
factual matter, this proposition is questionable:   Becker's
companion case, Park v Chessin, was brought in 1972 -- three
years before CPLR 214-a was enacted (see Park v Chessin, 60 AD2d
80, 83 [2d Dept 1977).   And Becker itself was filed in 1976 --
the year after section 214-a's enactment -- and was decided by
this Court in 1978 -- just three years after its enactment.
Becker's holding was far from unforeseeable when, in 1975, the
legislature enacted section 214-a.
          In any event, Becker was decided nearly forty years ago
and, over the ensuing four decades, the legislature has
unequivocally discredited the majority's reasoning: it has
repeatedly considered -- and rejected -- a number of proposals to
deviate from CPLR 214-a (see 2016 NY Senate-Assembly Bill S911A,
A285A).   Though the legislature has statutorily modified accrual
dates in other contexts (e.g. CPLR 214-b; id. 214-c), it has


                              - 6 -
                             - 7 -                  Nos. 126 & 127

consistently declined to do so in the context of these medical
malpractice claims, reasoning that "the harsh effect of CPLR 214-
a in certain cases" is "outweighed by 'the effect of potentially
open-ended claims upon . . . defendants and society'" (Helgans v
Plurad, 225 AD2d 554, 557 [2d Dept 1998], citing Goldsmith v
Howmedica, Inc., 67 NY2d 120, 124 [1986]; see also 2016 NY
Senate-Assembly Bill S911A, A285A).   Accordingly, even if Becker
was unforeseen at the time of section 214-a's enactment -- an
unlikely scenario -- the legislature has repeatedly opted, over
the span of several decades, not to modify the statutory accrual
rule for these Becker-type claims.    If the legislature has chosen
not to "ameliorate the statute's effects" by altering the
existing scheme, "this Court should not tread where the
legislature refuses to go" (McCoy v Feinman, 99 NY2d 295, 307 n 2
[2002]; see also CPLR 201 ["No court shall extend the time
limited by law for commencement of an action."]).
                              III.
         Since Becker, this Court and others have properly
applied CPLR 214-a in the context of these medical malpractice
actions, employing the date of the alleged malpractice -- not the
date of birth -- as the applicable accrual date.    In Jorge v New
York City Health & Hosps. Corp., for instance, we dismissed the
plaintiff's medical malpractice action as untimely, using the
"alleged act of malpractice -- the misreading of the father's
genetic test results" as the relevant date of accrual (79 NY2d


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                              - 8 -                Nos. 126 & 127

905, 906 [1992]).   Several Appellate Division Departments have
similarly concluded that a plaintiff-parent's cause of action
does not "accrue upon the birth of the children but on the date
of the alleged malpractice" (Weed v Meyers, 251 AD2d 1062, 1064
[4th Dept 1998]; see also Scrofini v Sebollena, 226 AD2d 523, 523
[2d Dept 1996]).
         This Court has also rejected the majority's theory that
a cause of action cannot accrue before any "legally cognizable
injury" has been suffered.   In Goldsmith v Howmedica, for
instance, the plaintiff received a total hip replacement and,
eight years after the device was implanted, a component of the
implant malfunctioned (67 NY2d 120, 122 [1986]).   On appeal, the
Court was asked to determine the applicable accrual date --
either the "implantation of the prosthetic device," or the date
of "injury to the patient" (id.).   Holding that "the cause of
action accrues upon implantation," not upon the date of injury,
the Court determined that the plaintiff's cause of action was
barred by the applicable three-year statute of limitations (id.
at 122, 124).   The Goldsmith Court rejected the argument --
accepted by the majority in this case -- that "to require the
bringing of an action within three years of the commission of the
malpractice effectively forecloses an action against the doctor
before any injury has been suffered" (id. at 123-124):
         "The argument is not new. We have carefully
         considered it on numerous occasions. In
         each, we weighed the detriments of such a
         result against the effect of potentially

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                                - 9 -                Nos. 126 & 127

           open-ended   claims upon the repose of
           defendants   and society, and held that the
           Statute of   Limitations must run from the time
           of the act   until the Legislature decrees
           otherwise"
(id. at 124 [citations omitted]).
                                 IV.
           Our decision in LaBello v Albany Med. Ctr. Hosp. (85
NY2d 701 [1995]) -- a "distinguishable" case (majority op at 12)
-- does not justify the majority's disregard of the operative
statute.   In LaBello, the Court considered an infant's own cause
of action, not the parents' medical malpractice claim.       The Court
determined that the infant's cause of action, seeking damages for
allegedly faulty prenatal care, "accrue[d] on the earliest date
the injured plaintiff could juridically assert the claim and sue
for relief, that is, the date of being born alive" (id. at 703).
           Applying CPLR 214-a to this "unenvisaged circumstance"
-- an unborn plaintiff -- the Court reasoned that the statute
"expresses and presumes physical existence and juridical capacity
to sue" (id. at 706).     Because the "plaintiff, having no legal
existence, could not have legally uttered the complaint" prior to
his birth, his cause of action could not accrue "before the
infant acquired the recognized legal capacity to sue" (id. at
706, 707).   In other words, since the infant plaintiff lacked the
"cognizable status in a court of law to sue" until his birth, his
statute of limitations did not begin to run until that time (id.
at 707).


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                              - 10 -               Nos. 126 & 127

          The barrier to suit present in LaBello -- the
plaintiff's non-existence -- is entirely inapplicable in this
case.   Here, plaintiffs are parents seeking damages in their own
right, who had the requisite capacity to sue on the date of the
alleged malpractice.   Unlike an unborn infant, these plaintiffs
had the "recognized legal capacity to sue" prior to the birth of
their children (LaBello, 85 NY2d at 706).   Because of this
critical distinction, which formed the basis of LaBello's
holding, LaBello is entirely inapt.
                                V.
          The majority's goal is laudable one: it allows more
time for plaintiffs asserting claims due to alleged medical
malpractice resulting in devastating and life-altering injuries
to their minor children.   But this well-intentioned effort
contravenes the plain language of CPLR 214-a and implements an
arbitrary "date of birth" accrual rule that does not correspond
to the date of the alleged injury, the date of plaintiff's
capacity to sue, or the date of the injury's discovery.
Accordingly, while the majority's holding saves these plaintiffs'
claims, it will not save others.
          The governing statute explicitly provides that
plaintiffs' limitations period runs from the date of the alleged
malpractice, not the date of the child's birth.   Though that
mandate may inflict hardship on plaintiffs, "the Statute of
Limitations must run from the time of the act until the


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                                - 11 -                   Nos. 126 & 127

Legislature decrees otherwise" (Goldsmith, 67 NY2d at 124).
*   *   *   *   *   *   *   *     *      *   *   *   *   *   *   *   *
For Each Case: Order insofar as appealed from affirmed, with
costs, and certified question answered in the affirmative.
Opinion by Chief Judge DiFiore. Judges Rivera, Stein, Fahey and
Wilson concur. Judge Garcia dissents in an opinion. Judge
Feinman took no part.

Decided December 14, 2017




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