We respectfully dissent and vote to affirm Supreme Court’s order.
We cannot subscribe to the premise necessarily underlying the majority’s decision, that the infant’s cause of action accrued before he was born. Although in most instances a malpractice action accrues when the act of malpractice is committed, that is also ordinarily the first time at which the injured party could possibly allege all of the elements of the tort.* Here, however, this specific "rule” must yield to the general principle that no action can accrue until the plaintiff has a legal right to relief (see, Kronos, Inc. v AVX Corp., 81 NY2d 90, 94); inasmuch as there could be no liability until the infant was born alive (see, Endresz v Friedberg, 24 NY2d 478, 485-486; Scott v Capital Area Community Health Plan, 191 AD2d 772, 774), his claim could not have been stated, and therefore could not have accrued, until that time; accordingly, it should not be considered time barred.
Nor do we believe that the distinction between a "cause of action”, which the majority claims accrues when the malpractice is committed, and the infant’s "right of action”, which it *303admits does not mature until birth, compels a different result. In fact, it would appear that, if this distinction is not wholly illusory, it is only the latter which triggers the running of the limitations period. Notably, in Jacobus v Colgate (217 NY 235) a "cause of action” was defined as " 'the right to prosecute an action with effect’ ” (supra, at 241, quoting Patterson v Patterson, 59 NY 574, 578), and it was explained that " '[i]t is not possible for one at the same time to have a cause of action and not to have the right to sue’ ” (supra, at 241, quoting Walters v City of Ottawa, 240 Ill 259, 263, 88 NE 651). Thus, it would appear that a cause of action cannot accrue until there is a right of action, as that term is defined by the majority. "The rule”, as Judge Cardozo noted, "is that the Statute of Limitations does not begin to run against a suitor until the state has supplied him with a tribunal in which his suit may be maintained”, and furthermore, "[a] cause of action does not accrue until its enforcement becomes possible” (Jacobus v Colgate, supra, at 244-245). Hence, inasmuch as the infant could not have brought suit in any tribunal until he was born, we are of the opinion that the limitations period could not begin to run against him prior to that time.
Mercure and Crew III, JJ., concur with White, J.; Yesawich Jr., J., and Mikoll, J. P., dissent in a separate opinion by Yesawich Jr., J.
Ordered that the order is modified, on the law, without costs, by reversing so much thereof as granted the motion dismissing the third and fourth affirmative defenses in the answer; motion denied to that extent; and, as so modified, affirmed.
Significantly, in none of the cases cited by the majority has it been held that an infant plaintiff’s cause of action was barred because it accrued prior to his or her birth. In the only one of those cases to have reached the Court of Appeals (Jorge v New York City Health & Hosps. Corp., 164 AD2d 650, revd on other grounds 79 NY2d 905), the parents were clearly seeking redress for their own damages, for they claimed that had malpractice not been committed, they would have terminated the pregnancy (see, supra, at 651). And in Branigan v DeBrovner (197 AD2d 270), the Court did not need to address the question raised here, because the continuous treatment doctrine tolled the limitations period for both the mother and her son.