Harris v. Rizkalla

— In an action to recover damages for personal injuries, etc., based upon medical malpractice, the defendant appeals from so much of an order of the Supreme Court, Kings County (Aronin, J.), dated February 19, 1985, as, upon reargument, denied that branch of the defendant’s motion which was for dismissal of the plaintiffs’ fifth and sixth causes of action against him.

Order affirmed insofar as appealed from, with costs.

The plaintiffs do not, in fact, seek recovery of child-rearing *493expenses by way of the fifth and sixth causes of action sounding in contract, and, indeed, concede that such recovery in connection with a failed vasectomy is impermissible under New York law whether the claim sounds in contract or in tort (see, O’Toole v Greenberg, 64 NY2d 427). Since the defendant does not otherwise challenge the legal sufficiency of the contract pleaded herein, dismissal of the fifth and sixth causes of action was properly denied. Mollen, P. J., Thompson, Niehoff, Rubin and Kunzeman, JJ., concur.