WINEGRAD v. JACOBS

Plaintiffs assert a breach of contract claim arising from the rendition of medical services. Such claim will not withstand the test of legal sufficiency unless there has been an express special promise to effect a cure or to accomplish some definite result (Mitchell v Spataro, 89 A.D.2d 599; Monroe v Long Is. Coll. Hosp., 84 A.D.2d 576; Carr v Lipshie, 8 A.D.2d 330, affd 9 N.Y.2d 983), otherwise it is a redundant pleading of a malpractice claim (Delaney v Krafte, 98 A.D.2d 128). Plaintiffs have failed to demonstrate, in opposition to the motion to dismiss, any such express or special promise, and their cause of action sounding in breach of warranty and breach of contract properly was dismissed.

Concur — Milonas, J.P., Rosenberger, Asch and Rubin, JJ.