We disagree and vote to affirm. While not under constraint as was the majority in Howard v Lecher (53 AD2d 420, 423) in applying the rationale of Johnson v State of New York (37 NY2d 378) and Tobin v Grossman (24 NY2d 609) to the circumstances of its case, we nonetheless adopt the reasoning of Howard and would hold that in the circumstances here no cause of action may be stated by a parent against a physician for the negligent infliction of emotional harm. Nor would we grant leave to replead the fourth cause of action sounding in contract since on this record it is an attempt to plead in different form what is essentially a malpractice action (cf. Liebler v Our Lady of Victory Hosp., 43 AD2d 898).
Simons and Wither, JJ., concur with Moule, J. P.; Cardamone and Dillon, JJ., dissent and vote to affirm the order and judgment in a memorandum.
Order and judgment modified in accordance with opinion by Moule, J. P., and as modified affirmed, without costs.