The plaintiff s-respondents, Marie Ziemba and David Ziemba, her husband, instituted this action for malpractice against the defendant-appellant Emil Sternberg, M. D., and defendant Victor Dozoretz, doing business as Victor Clinical Laboratories. The plaintiffs allege that the defendant, Emil Sternberg, M. D., failed to diagnose a pregnancy of the plaintiff, Marie Ziemba, for an extended period *234of time and that the plaintiff found it necessary to consult another doctor before being advised that she was pregnant. By that time she was approximately four months pregnant and was advised by the second physician as to the danger of an abortion. She, therefore, decided against the abortion even though she did not want to have children. Subsequently, she gave birth to a normal, healthy child. This action was instituted to recover damages for the pain and suffering relative to the confinement and birth of the child, loss of consortium with her plaintiff husband and the costs and expenses relating to raising the child. Additional causes of1 action stated in the complaint are on behalf of the husband, David Ziemba, for out-of-pocket medical expenses, loss of consortium and also the costs and expenses relating to raising the child.
The defendant-appellant, Emil Sternberg, M. D., moved to dismiss the complaint on the ground that such an action is not cognizable in the State of New York. Special Term denied the motion and it is from such denial that the defendant-appellant appeals.
The cause of action asserted by the plaintiffs parents is one not previously cognizable to the law and as such it should await legislative recognition (Stewart v. Long Is. Coll. Hosp., 35 A. D 2d 531, affd. 30 N Y 2d 695). Even if it is .assumed that the limited legalization of abortion (Penal Law, § 125.45 et seq.) with its inherent option to pregnant women gives rise to a cause of action for failure to timely diagnose a pregnancy, such an action would fail in this case for lack of provable damages: Plaintiffs seek to recover for the costs of raising and educating their “ unwanted ” child. Such expenses could obviously have been avoided by placing the child for adoption. Further, construing this complaint in a light most favorable to plaintiffs-respondents, there is no claim that the danger to plaintiff wife of an abortion at four months was any greater than a full term delivery. Absent such allegation, and since a legal abortion was an option still available at that time, her failure to avail herself of this legal alternative should operate to bar her present claim for damages. Finally, as to claimed damages arising out of the confinement, pain and suffering attendant with carriage and delivery, the plaintiffs have been compensated by the birth, comfort and society of their infant child which they elected to keep. Had they chosen to have their infant adopted after its birth, then, in my view, their complaint might state a good cause of action. But, they cannot enjoy the pleasure, comfort and society of their infant and also seek compensatory *235damages for its birth at the same time. If the parents choose to retain the custody and companionship of their infant, they have no damages and, consequently, state no cause of action. Accordingly, I dissent and vote to reverse the order and grant the motion to dismiss the complaint for failure to state a cause of action.
Motjle and Simons, JJ., concur with Del Vecchio, J.; Cabdamone and Mahoney, JJ., dissent and vote to reverse the order, grant the motion and dismiss the complaint in an opinion by Cabdamone, J.
Order affirmed with costs.