Upon the foregoing papers it is ordered that these motions are consolidated and determined as follows:

Herein, the parties entered into a so-ordered stipulation on March 17, 2006 which stated that "motions for summary judgment ... must be made returnable no later than June 15, 2006." Defendants' motions for summary judgment were served on opposing counsel before June 15, 2006. However, the Clerk of the Supreme Court, Queens County, did not permit the filing of the motions because the return date that had been selected, June 15, 2006, fell on a Thursday, and was thus inconsistent with this Court's Part Rules which require that motions be made returnable on Tuesdays. Choices immediately moved by order to show cause to extend the time to move for summary judgment to the following Tuesday, June 20, 2006. Dr. Kramer promptly filed an amended motion setting forth a new return date of Tuesday, June 20, 2006. These motions were denied by this Court in separate orders dated October 3, 2006, on the basis of untimeliness. The instant motions of Choices and Dr. Kramer to reargue the October 3, 2006 orders of this Court are granted. Upon re-argument, the summary judgment motions of Choices and Dr. Kramer are deemed to be timely and the Court will now consider the defendants' motions on the merits.

In this medical malpractice action, it is alleged that plaintiff Tracey O'Sullivan suffered injuries from the stillbirth of her infant as a result of the prenatal malpractice and negligence of the defendants. [*2]

Plaintiff sought prenatal care from defendants between July 27, 2001 and November 8, 2001 for her pregnancy, which resulted in a stillbirth on December 14, 2001. Plaintiff asserts that, due to her in utero exposure to DES (diethylstilbestrol), plaintiff's risk of having an incompetent cervix was increased and defendants should have performed a cerclage procedure, i.e., an operation to tighten an incompetent (loose) cervix with sutures, to prevent miscarriage or stillbirth from occurring.

Plaintiff commenced the instant action against defendants on June 14, 2004, asserting six causes of action: medical malpractice, negligent infliction of emotional distress, lack of informed consent, negligent hiring and retention, inadequate staffing and negligent health care facility administration.

Defendants move for summary judgment on the first three causes of action on statute of limitations grounds.

Plaintiff's first cause of action for medical malpractice and third cause of action for lack of informed consent are governed by the applicable 2 ½ year statute of limitations (CPLR 214-a). It is conceded that plaintiff did not seek treatment from defendants after November 8, 2001, and therefore, since plaintiff did not commence this action until after the statute of limitations expired, the causes of action for medical malpractice and lack of informed consent are both time-barred.

Plaintiff's second cause of action for negligent infliction of emotional distress was recently created by the Court of Appeals in its landmark decision, (Broadnax v Gonzalez, 2 NY3d 148 [2004]), in which it was held that even in the absence of an independent injury, medical malpractice resulting in miscarriage or stillbirth should be construed as a violation of a duty of care to the expectant mother, entitling her to damages for emotional distress.

Broadnax v Gonzalez, supra, overruled Tebbutt v Virostek (65 NY2d 931 [1985]), in which the Court of Appeals had previously held that a mother could not recover for emotional injuries when medical malpractice caused a stillbirth or miscarriage, absent a showing that she suffered a physical injury that was both distinct from that suffered by the fetus and not a normal incident of childbirth.

In overruling Tebbutt v Virostek, supra, the Court of Appeals specified that the mother's recovery was limited "only to damages for the emotional distress attending a stillbirth or miscarriage caused by medical malpractice." (Broadnax v Gonzalez, supra, at 155).

In Sheppard-Mobley v King (4 NY3d 627 [2005]), the Court of Appeals refused to expand its holding in Broadnax, supra, to include a cause of action to recover damages for emotional harm where the alleged medical malpractice causes in utero injury to a fetus subsequently born alive. [*3]

In the instant case, defendants assert that the 2 ½ year statute of limitations (CPLR 214-a) applies to the plaintiff's cause of action for negligent infliction of emotional distress and that the cause of action accrues at the time of the malpractice. Plaintiff accedes to the application of the 2 ½ year statute of limitations, but argues that accrual arises on the stillbirth, i.e., December 14, 2001, rather than on the last alleged act of malpractice, i.e., November 8, 2001.

Thus far, no precedent exists with regard to the applicable statute of limitations or accrual time for the new cause of action created by Broadnax.

The Broadnax Court clearly states that the negligent infliction of emotional distress arises out of acts of medical malpractice, thereby implying that the medical malpractice statute of limitations (CPLR 214-a) should apply.

However, the cause of action created by Broadnax only exists when there is a stillbirth or miscarriage, the defining moment that cause of action can begin to be asserted. The statute of limitations does not run until there is a legal right to relief, herein, the stillbirth. Accrual occurs when the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint (see Kronos, Inc. v AVX Corp., 81 NY2d 90 [1993]). As a general rule, a cause of action for personal injuries, whether sounding in negligence, malpractice, or products liability, accrues at the time of injury (Barrell v Glen Oaks Vil. Owners, Inc., 29 AD3d 612 [2006]). It is well settled that a cause of action for negligent infliction of emotional distress accrues only when all of the elements, including damages, can be alleged in the complaint (see Kronos, Inc. v AVX Corp., supra; Yong Wen Mo v Gee Ming Chan, 17 AD3d 356 [2005]; Augeri v Roman Catholic Diocese of Brooklyn, 225 AD2d 1105 [1996]; Dana v Oak Park Marina, 230 AD2d 204 [1997]).

Whereas an action for malpractice based upon prenatal injuries accrues to an infant on the date of his or her birth, and would not be enforceable until then (see LaBello v Albany Medical Ctr. Hosp., 85 NY2d 701 [1995]; Ciceron v Jamaica Hosp., 264 AD2d 497 [1999]; Marchand v Capone, 223 AD2d 686 [1996]), it follows that a cause of action for damages for emotional distress caused by medical malpractice resulting in miscarriage or stillbirth can only accrue to the mother upon the stillbirth, without which the cause of action would not exist, and which is the earliest date the cause of action can be asserted.

Turning now to the three negligence causes of action asserted against defendant Choices, the expert affirmation of Dr. Henry F. Gardstein, Jr., which indicates that Choices was not negligent in the care or treatment of plaintiff is sufficient to meet its burden as a proponent of a summary judgment motion (see Alvarez v Prospect Hosp., 68 NY2d 320 [1987]; Berger v Becker, 272 AD2d 565 [2001]; Juba v Bachman, 255 AD2d 492 [1998]; Whalen v Victory Memorial Hosp., 187 AD2d 503 [1983]).

The burden now shifts to plaintiff to respond with rebutting evidence demonstrating that defendants' actions were a departure from the accepted standard of care in the medical community (see Alvarez v Prospect Hosp., supra; Whalen v Victory Memorial Hosp., supra) and [*4]a proximate cause in bringing about the injury (see, Mortensen v Memorial Hosp., 105 AD2d 151 [1985]). Plaintiff fails to submit any evidentiary proof which would raise a triable issue of fact with regard to the issue of negligence.

Accordingly, the motions of defendants Choices and Dr. Kramer for leave to reargue the separate orders of this Court dated October 3, 2006, are granted, and upon re-argument, the summary judgment motion of Dr. Kramer is granted to the extent that all of the causes of action asserted against him, except for the second cause of action for negligent infliction of emotional distress, are dismissed; the summary judgment motion of Choices is granted to the extent that all of the causes of action asserted against it, except for the second cause of action for negligent infliction of emotional distress, are dismissed.

Dated:VALERIE BRATHWAITE NELSON, J.S.C.