Tsimbler v. Fell, 123 A.D.3d 1009 (N.Y. App. Div. 2014). · Go Syfert
Tsimbler v. Fell, 123 A.D.3d 1009 (N.Y. App. Div. 2014). Cases Citing This Book View Copy Cite
33 citation events (33 in the last 25 years) across 2 distinct courts.
Strongest positive: Romanova v. Glatzer (nyappdiv, 2026-05-13)
Treatment trajectory · 2015 → 2026 · click a year to view as-of
2015 2020 2026
Top citers, strongest first. 13 distinct citers. How cited ↗
discussed Cited as authority (rule) Romanova v. Glatzer (2×)
N.Y. App. Div. · 2026 · confidence medium
Ctr. , 133 AD3d 830, 831; see Romano v Stanley , 90 NY2d 444, 452; Tsimbler v Fell , 123 AD3d 1009, 1009).
discussed Cited as authority (rule) Poreba-Gier v. Suddaby
N.Y. App. Div. · 2022 · confidence medium
Here, defendant met his initial burden by establishing that any lack of informed consent was not a proximate cause of any injury to plaintiff ( see Keller v Liberatore , 134 AD3d 1495, 1497 [4th Dept 2015]; Tsimbler v Fell , 123 AD3d 1009, 1010-1011 [2d Dept 2014]).
discussed Cited as authority (rule) Delosh v. Amyot
N.Y. App. Div. · 2020 · confidence medium
Moreover, Witte, an accident reconstructionist, did not aver that he has the requisite medical training that would qualify him to render an opinion as to whether Amyot was impaired ( see Tsimbler v Fell , 123 AD3d 1009, 1010 [2014]).
discussed Cited as authority (rule) Dyckes v. Stabile
N.Y. App. Div. · 2017 · confidence medium
“A cause of action predicated on a lack of informed consent is meant to redress a failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical . . . practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation” (id. at 694 [internal quotation marks omitted]; see Public Health Law § 2805-d [1]; Figueroa-Burgos v Bieniewicz, 135 AD3d 810 [2016]; Tsimbler v Fell, 123 AD3d 1009…
discussed Cited as authority (rule) Bongiovanni v. Cavagnuolo
N.Y. App. Div. · 2016 · confidence medium
Thus, when a physician offers an expert opinion outside of his or her specialization, a foundation must be laid tending to support the reliability of the opinion rendered (see Tsimbler v Fell, 123 AD3d at 1009; Bey v Neuman, 100 AD3d 581, 582 [2012]; Shectman v Wilson, 68 AD3d 848, 850 [2009]; Geffner v North Shore Univ.
examined Cited as authority (rule) KELLER, JESSICA v. LIBERATORE, M.D., CARLA (3×) also: Cited "see, e.g."
N.Y. App. Div. · 2015 · confidence medium
Contrary to plaintiffs contention, even in cases where the defendant fails to submit sufficient proof with respect to the other elements of an informed consent cause of action, the defendant may nevertheless establish entitlement to summary judgment by demonstrating that any lack of informed consent was not the proximate cause of the plaintiff’s injury (see Tsimbler v Fell, 123 AD3d 1009, 1010-1011 [2014]; Amodio v Wolpert, 52 AD3d 1078, 1080 [2008]; Mondo v Ellstein, 302 AD2d 437, 438 [2003]).
discussed Cited as authority (rule) Lavi v. NYU Hospitals Center
N.Y. App. Div. · 2015 · confidence medium
The defendants met their prima facie burden of establishing their entitlement to judgment as a matter of law dismissing the cause of action alleging medical malpractice by submitting the affidavit of their expert, an endocrinologist, which demonstrated that Schuval’s treatment of the injured plaintiffs low testosterone condition through testosterone replacement therapy was performed in accordance with good and accepted standards of medical practice (see Tsimbler v Fell, 123 AD3d 1009, 1009-1010 [2014]; Poter v Adams, 104 AD3d 925, 926 [2013]).
discussed Cited as authority (rule) Leavy v. Merriam
N.Y. App. Div. · 2015 · confidence medium
An expert witness must possess the requisite skill, training, knowledge, or experience to ensure that an opinion rendered is reliable (see Tsimbler v Fell, 123 AD3d 1009, 1009-1010 [2014]; Behar v Coren, 21 AD3d 1045 [2005]; Postlethwaite v United Health Servs.
discussed Cited as authority (rule) Calamari v. Panos
N.Y. App. Div. · 2015 · confidence medium
The causes of action alleging medical malpractice and lack of informed consent are distinct not only as to the conduct alleged, but also as to the dates on which the conduct occurred and who engaged in it (compare Stukas v Streiter, 83 AD3d 18, 23 [2011], and Tsimbler v Fell, 123 AD3d 1009, 1010 [2014], with Diana F. v Velez, 126 AD3d 856, 856 [2015]).
cited Cited as authority (rule) Collado v. New York City Health & Hospitals Corp.
N.Y. Sup. Ct. · 2015 · confidence medium
(See Tsimbler v Fell, 123 AD3d 1009, 1010-1011 [2d Dept 2014].) In accordance with the foregoing, it is ordered that defendants’ motion for summary judgment is granted and the complaint is dismissed.
cited Cited "see" Abruzzi v. Maller
N.Y. App. Div. · 2023 · signal: see · confidence high
Hosps. , 5 AD3d 892, 895 ; see Tsimbler v Fell , 123 AD3d 1009, 1009-1010 ; Shectman v Wilson , 68 AD3d 848, 849 ).
discussed Cited "see" Gullo v. Bellhaven Ctr. for Geriatric & Rehabilitative Care, Inc.
N.Y. App. Div. · 2018 · signal: see · confidence high
Where, as here, "a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion" ( DiLorenzo v Zaso , 148 AD3d 1111, 1113 [internal quotation marks omitted]; see Tsimbler v Fell , 123 AD3d 1009, 1009-1010 ; Feuer v Ng , 136 AD3d at 707 ).
discussed Cited "see" DiLorenzo v. Zaso
N.Y. App. Div. · 2017 · signal: see · confidence high
Where no such foundation is laid, the expert’s opinion is “of no probative value” (Feuer v Ng, 136 AD3d at 707 ; see Tsimbler v Fell, 123 AD3d 1009, 1009-1010 [2014]; Shashi v South Nassau Communities Hosp., 104 AD3d at 839; Geffner v North Shore Univ.
Retrieving the full opinion text from the archive…
Yosif Tsimbler, Appellant,
v.
Millie R. Fell, M.D., Et Al., Respondents, Et Al., Defendant
2014-01760.
Appellate Division of the Supreme Court of the State of New York.
Dec 24, 2014.
123 A.D.3d 1009
Maltese, Mastro, Roman, Sgroi.
Cited by 21 opinions  |  Published

In an action, inter alia, to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated December 20, 2013, which granted that branch of the motion of the defendants Millie R. Fell and Raymond Reich which was for summary judgment dismissing the complaint insofar as asserted against them, and denied his cross motion to dismiss their affirmative defense alleging that the action was time-barred.

Ordered that the order is affirmed, with costs.

The defendants Millie R. Fell and Raymond Reich (hereinafter together the physician defendants) established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging medical malpractice by submitting the affidavit of their expert, which demonstrated that their diagnosis and treatment of the plaintiffs open-angle glaucoma was in accordance with good and accepted standards of medical practice (see Poter v Adams, 104 AD3d 925, 926 [2013]; Olgun v Cipolla, 82 AD3d 1186, 1187 [2011]; Smith-Johnson v Gabbur, 65 AD3d 1122, 1124 [2009]; Dandrea v Hertz, 23 AD3d 332 [2005]). In opposition, the plaintiff submitted the affidavit of a physician specializing in the field of internal medicine, which did not state whether the physician had any specific training or expertise in ophthalmology, or particularized knowledge as to the treatment of glaucoma. Moreover, the affidavit did not indicate that the physician had familiarized himself with the relevant literature or otherwise set forth how he was, or became, familiar with the applicable standards of care in this specialized area of practice. “ ‘While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field . . . the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable’ ” (Behar v Coren, 21 AD3d 1045, 1046-1047 [2005], quoting Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 895 [2004]; see Shectman v Wilson, 68 AD3d 848, 849 [2009]). Thus, where a physician opines outside of his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered (see [*1010] Shectman v Wilson, 68 AD3d at 850; Geffner v North Shore Univ. Hosp., 57 AD3d 839 [2008]; Bjorke v Rubenstein, 53 AD3d 519, 520 [2008]; Glazer v Choong-Hee Lee, 51 AD3d 970, 971 [2008]; Mustello v Berg, 44 AD3d 1018, 1019 [2007]; Behar v Coren, 21 AD3d at 1046-1047). Under the circumstances of this case, the plaintiffs expert failed to lay the requisite foundation for his asserted familiarity with ophthalmology and, thus, his affidavit was of no probative value. Accordingly, the plaintiff failed to raise a triable issue of fact, and the Supreme Court properly granted that branch of the physician defendants’ motion which was for summary judgment dismissing the cause of action alleging medical malpractice insofar as asserted against them.

“[L]ack of informed consent is a distinct cause of action requiring proof of facts not contemplated by an action based merely on allegations of negligence” (Jolly v Russell, 203 AD2d 527, 528 [1994]). A cause of action premised on a lack of informed consent “is meant to redress a ‘failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical . . . practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation’ ” (Karlin v IVF Am., 93 NY2d 282, 292 [1999], quoting Public Health Law § 2805-d [1]). Thus, to establish a cause of action to recover damages for malpractice based on lack of informed consent, a plaintiff must prove “(1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury” (Spano v Bertocci, 299 AD2d 335, 337-338 [2002] [citation and internal quotation marks omitted]; see Khosrova v Westermann, 109 AD3d 965, 966 [2013]).

Here, the physician defendants failed to submit proof sufficient to establish, prima facie, that they had informed the plaintiff of the reasonably foreseeable risks associated with the treatment, and, in any event, that a reasonably prudent patient in the same position would have undergone the treatment if he or she had been fully informed. However, the physician defendants established, prima facie, that the lack of informed consent[*1011] was not the proximate cause of the plaintiffs injury by submitting the affidavit of their expert, who opined that the physician defendants’ treatment of the plaintiff was not responsible for his injuries. In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the physician defendants’ motion which was for summary judgment dismissing the cause of action alleging lack of informed consent insofar as asserted against them.

The plaintiffs remaining contentions either are without merit or need not be reached in light of our determination.

Mastro, J.P., Roman, Sgroi and Maltese, JJ, concur.