In LaBello v. Albany Med. Ctr. Hosp. (85 NY2d 701) the infant plaintiff was injured in utero as a result of the alleged malpractice of the defendants.
In that case the Court held that the cause of action accrued at the time of birth based upon the principles that:
(1) an infant plaintiff has no right of action unless born alive
(2) liability for in utero injuries does not exist until there is a live birth,
(3) the Statute of Limitations cannot run until there is a legal right to relief.