Gittler v. Pinsky

Gittler v Pinsky 2026 NY Slip Op 05771 October 7, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Andrice Gittler, et al., appellants, v Steven H. Pinsky, etc., et al., respondents, et al., defendants. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on October 7, 2026 2021-04293, 2021-04300, (Index No. 603576/19) Angela G. Iannacci, J.P. Deborah A. Dowling Carl J. Landicino Laurence L. Love, JJ. Belluck & Fox, LLP, New York, NY (Kristina M. Georgiou and Michael A. Macrides of counsel), for appellants. Dorf Nelson & Zauderer, LLP, Rye, NY (Jonathan B. Nelson of counsel), for respondents Steven H. Pinsky and Rockville Anesthesia Group, LLP. Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (Judy C. Selmeci and Stephanie F. Freeman of counsel), for respondent North Shore University Hospital. [*1] DECISION & ORDER In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (Denise L. Sher, J.), entered May 5, 2021, and (2) an order of the same court entered May 17, 2021. The order entered May 5, 2021, insofar as appealed from, granted that branch of the motion of the defendants Steven H. Pinsky and Rockville Anesthesia Group, LLP, which was for summary judgment dismissing the causes of action alleging medical malpractice and loss of consortium insofar as asserted against them. The order entered May 17, 2021, insofar as appealed from, granted that branch of the motion of the defendant North Shore University Hospital which was for summary judgment dismissing the causes of action alleging medical malpractice and loss of consortium insofar as asserted against it. ORDERED that the order entered May 5, 2021, is reversed insofar as appealed from, on the law, and that branch of the motion of the defendants Steven H. Pinsky and Rockville Anesthesia Group, LLP, which was for summary judgment dismissing the causes of action alleging medical malpractice and loss of consortium insofar as asserted against them is denied; and it is further, ORDERED that the order entered May 17, 2021, is affirmed insofar as appealed from; and it is further, ORDERED that one bill of costs is awarded to the plaintiffs payable by the defendants Steven H. Pinsky and Rockville Anesthesia Group, LLP, and one bill of costs is awarded to the defendant North Shore University Hospital payable by the plaintiffs. On January 3, 2016, the plaintiff Andrice Gittler presented to the emergency department of the defendant North Shore University Hospital (hereinafter NSUH) complaining of [*2]pain in her right hip. Gittler was diagnosed with muscle strain and sent home with instructions to rest and follow up with her primary care physician. The following day, Gittler was seen by a physician in the office of her primary care physician, who ordered a spinal MRI and referred her to the defendant Steven H. Pinsky. On January 8, 2016, Pinsky saw Gittler at an office operated by the defendant Rockville Anesthesia Group, LLP (hereinafter Rockville). Pinsky diagnosed Gittler with lumbar disc displacement, annular tear, and multiple level lumbar radicular pain, and performed epidural steroid injections. Gittler's pain worsened until she was admitted to a hospital and underwent a right hip aspiration, after which she was diagnosed with right septic hip. After certain other procedures were performed and physical therapy was undertaken, Gittler was discharged from the hospital on January 20, 2016. Gittler, and her husband suing derivatively, commenced this action, inter alia, to recover damages for medical malpractice and loss of consortium against, among others, NSUH, Pinsky, and Rockville. The plaintiffs alleged, among other things, that the defendants failed to properly diagnose and treat the infection in her hip, resulting in the need for surgical intervention and causing her to suffer arthritis of the right hip. Pinsky and Rockville moved for summary judgment dismissing the amended complaint insofar as asserted against them, and NSUH moved for summary judgment dismissing the amended complaint insofar as asserted against it. In an order entered May 5, 2021, the Supreme Court, inter alia, granted that branch of the motion of Pinsky and Rockville which was for summary judgment dismissing the causes of action alleging medical malpractice and loss of consortium insofar as asserted against them. In an order entered May 17, 2021, the court, among other things, granted that branch of NSUH's motion which was for summary judgment dismissing the causes of action alleging medical malpractice and loss of consortium insofar as asserted against it. The plaintiffs appeal. "'A defendant seeking summary judgment in a medical malpractice action must make a prima facie showing either that he or she did not depart from the accepted standard of care or that any departure was not a proximate cause of the plaintiff's injuries'" (Rodriguez v Ashalumov, 238 AD3d 1082, 1083, quoting M.C. v Huntington Hosp., 175 AD3d 578, 579; see Wodzenski v Eastern Long Is. Hosp., 170 AD3d 925, 926). "'In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's complaint and bill of particulars'" (Rodriguez v Ashalumov, 238 AD3d at 1083, quoting Wiater v Lewis, 197 AD3d 782, 783; see Wall v Flushing Hosp. Med. Ctr., 78 AD3d 1043, 1044-1045). "'If the defendant makes such a showing, the burden then shifts to the plaintiff to raise a triable issue of fact, but only as to those elements on which the defendant met its prima facie burden of proof'" (Rodriguez v Avshalumov, 238 AD3d at 1083, quoting Wiater v Lewis, 197 AD3d at 783; see Friedman v Vitale, 224 AD3d 888, 890). "'[E]xpert opinions in opposition should address specific assertions made by the movant's experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record'" (Valentine v Weber, 203 AD3d 992, 993, quoting Tsitrin v New York Community Hosp., 154 AD3d 994, 996). "Where a medical malpractice plaintiff alleges a failure to timely diagnose a condition, the gravamen of the plaintiff's cause of action is that 'the departures from the standard of care delayed diagnosis and decreased the chances of a better outcome or increased the injury'" (Connolly v Sanders, 239 AD3d 594, 595, quoting Paglinawan v Ing-Yann Jeng, 211 AD3d 743, 745). "Where a plaintiff alleges that a delay in diagnosis caused the injury, an expert affidavit that is conclusory and speculative and does not address or rebut a specific assertion that an alleged delay in diagnosis did not contribute to the alleged injuries is insufficient" (id.; see Zabary v North Shore Hosp. in Plainview, 190 AD3d 790, 794). Here, Pinsky and Rockville failed to establish, prima facie, that Pinsky did not deviate from good and accepted medical practice in his treatment of Gittler or that such alleged deviations were not a proximate cause of Gittler's injuries. In an affirmation of an expert submitted in support of the motion of Pinsky and Rockville, the expert relied upon a disputed fact (see Reiss v Sayegh, 123 AD3d 787, 789; Plato v Guneratne, 54 AD3d 741, 742), specifically, that Pinsky performed a [*3]physical examination of Gittler's hip. Furthermore, the expert's opinion that the delay in diagnosis due to Pinsky's alleged deviations could not have caused or contributed to a worsening of the infection was outside his area of specialization (see Mustello v Berg, 44 AD3d 1018, 1019; Behar v Coren, 21 AD3d 1045, 1046) and conclusory and speculative (see Chillious v Edouard, 234 AD3d 737, 740; Prunty v Mehta, 223 AD3d 760, 762). Accordingly, the Supreme Court should have denied that branch of the motion of Pinsky and Rockville which was for summary judgment dismissing the causes of action alleging medical malpractice and loss of consortium insofar as asserted against them without regard to the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). However, the Supreme Court properly granted that branch of NSUH's motion which was for summary judgment dismissing the causes of action alleging medical malpractice and loss of consortium insofar as asserted against it. Although NSUH failed to establish, prima facie, that it did not deviate from good and accepted medical practice in its treatment of Gittler because the affirmations of its experts relied upon a disputed fact (see Reiss v Sayegh, 123 AD3d at 789; Plato v Guneratne, 54 AD3d at 742), NSUH established, prima facie, that the alleged deviations did not proximately cause the alleged injuries. NSUH submitted an affirmation of a board-certified orthopedist who opined, inter alia, that an earlier diagnosis at the time Gittler presented to NSUH would not have changed Gittler's prognosis or outcome because the condition of the hip would have taken months, not days, to develop, and the treatment for septic arthritis of the hip would have been the same had the diagnosis been made when Gittler presented to NSUH (see Brinkley v Nassau Health Care Corp., 120 AD3d 1287, 1289; Yaegel v Ciuffo, 95 AD3d 1110, 1113). In opposition to that showing by NSUH, the plaintiffs failed to raise a triable issue of fact as to whether NSUH's failure to diagnose Gittler's infection was a proximate cause of her injuries (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Yaegel v Ciuffo, 95 AD3d at 1113). The plaintiffs' remaining contention is without merit. IANNACCI, J.P., DOWLING, LANDICINO and LOVE, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court