Opinion
July 25, 1994
Appeal from the Supreme Court, Kings County (Spodek, J.).
Ordered that the order is modified, on the law, by deleting therefrom the provision which granted that branch of the defendant's motion which was to dismiss the plaintiff's second cause of action, and substituting therefore a provision denying that branch of the defendant's motion; as so modified, the order is affirmed, with costs to the appellant.
The trial court properly dismissed the plaintiff's first cause of action to recover damages for her mental and emotional injuries stemming from the stillbirth (see, Buzniak v. County of Westchester, 156 A.D.2d 631). However, the plaintiff's second cause of action alleges that the defendant improperly waited 15 hours before delivering the dead child by caesarean section, and that as a result the plaintiff was caused to undergo excruciating physical and mental pain. This has been held to constitute a separate and cognizable cause of action distinct from claims involving the stillbirth itself (see, McLean v. Lilling, 140 Misc.2d 191). Although the defendant's motion sought dismissal of the complaint on the grounds that it failed to state causes of action, it appears that in connection with the plaintiff's second cause of action the court improperly converted the motion to dismiss to one for summary judgment without providing notice to the parties (see, Mihlovan v. Grozavu, 72 N.Y.2d 506). In dismissing this cause of action on the merits as it did, the court recognized that a cause of action had been correctly pleaded. Thompson, J.P., Rosenblatt, Ritter, Friedmann and Krausman, JJ., concur.