Mosezhnik v. Berenstein, 33 A.D.3d 895 (N.Y. App. Div. 2006). · Go Syfert
Mosezhnik v. Berenstein, 33 A.D.3d 895 (N.Y. App. Div. 2006). Cases Citing This Book View Copy Cite
50 citation events (50 in the last 25 years) across 1 distinct court.
Strongest positive: Mylar v. Niagara Falls Mem. Med. Ctr. (nyappdiv, 2025-01-31)
Treatment trajectory · 2007 → 2026 · click a year to view as-of
2007 2016 2026
Top citers, strongest first. 32 distinct citers. How cited ↗
discussed Cited as authority (rule) Mylar v. Niagara Falls Mem. Med. Ctr.
N.Y. App. Div. · 2025 · confidence medium
Rather, the expert, in conclusory form, merely speculated that Chalupka's alleged deviations from the applicable standard of care contributed to Mason's injuries, and thus the affidavit was insufficient to raise a triable issue of fact with respect to proximate cause ( see Humbolt v Parmeter , 196 AD3d 1185, 1188 [4th Dept 2021]; Mosezhnik v Berenstein , 33 AD3d 895, 897 [2d Dept 2006]; see generally Pigut v Leary , 64 AD3d 1182, 1183 [4th Dept 2009]).
discussed Cited as authority (rule) Humbolt v. Parmeter
N.Y. App. Div. · 2021 · confidence medium
The affidavit of plaintiff's medical expert failed to raise a triable issue of fact in opposition inasmuch as the conclusory opinion of plaintiff's expert that defendants' "multiple deviations from the standard of care were a substantial contributing factor in causing [plaintiff's [*3]injuries]" is insufficient to raise an issue of fact concerning proximate cause ( see Mosezhnik v Berenstein , 33 AD3d 895, 897 [2d Dept 2006]; see generally Pigut v Leary , 64 AD3d 1182, 1183 [4th Dept 2009]).
discussed Cited as authority (rule) Martingano v. Hall
N.Y. App. Div. · 2020 · confidence medium
Indeed, on the occasions that decedent was [*2]admitted to the emergency department, he was under the care of other physicians for his tumor condition, the scope of radiology services was limited to emergency care, and Radiology Associates did not "assume[] a general duty of care to schedule or urge further testing, or [to] diagnose [or treat decedent's underlying] medical condition[]" ( Mosezhnik v Berenstein , 33 AD3d 895, 897 [2d Dept 2006]; see Covert v Walker , 82 AD3d 825, 826 [2d Dept 2011]; Pigut v Leary , 64 AD3d 1182, 1183 [4th Dept 2009]).
discussed Cited as authority (rule) Nowelle B. v. Hamilton Med., Inc.
N.Y. App. Div. · 2019 · confidence medium
We also agree with the Binghamton defendants that plaintiff's two expert submissions failed to raise a triable issue of fact with respect to proximate cause inasmuch as those submissions provide no explanation to support the claim that the alleged delay in transferring the child to Upstate University Hospital contributed to the injuries sustained, i.e., bilateral tension pneumothoraxes ( see Longtemps v Oliva , 110 AD3d 1316, 1319 [3d Dept 2013]; Mosezhnik v Berenstein , 33 AD3d 895, 897 [2d Dept 2006]).
discussed Cited as authority (rule) Neyman v. Doshi Diagnostic Imaging Services, P.C.
N.Y. App. Div. · 2017 · confidence medium
The sonogram was, as the plaintiff’s expert radiologist concedes, “unremarkable,” and neither Doshi nor Dorsten, its employee, assumed a general duty of care to schedule further testing or independently diagnose Olena’s medical condition (see Mosezhnik v Berenstein, 33 AD3d 895, 897 [2006]; Wasserman v Staten Is.
discussed Cited as authority (rule) Leigh v. Kyle
N.Y. App. Div. · 2016 · confidence medium
Contrary to the assertion of the plaintiffs’ expert, the single examination by Mechanic, without more, did not create a further duty on his part to supervise or participate in other aspects of her care (see Kleinert v Begum, 144 AD2d 645, 647 [1988]; see also Dockery v Sprecher, 68 AD3d 1043, 1046 [2009]; Mosezhnik v Berenstein, 33 AD3d 895, 897 [2006]).
discussed Cited as authority (rule) Doe v. Schwarzwald
N.Y. App. Div. · 2016 · confidence medium
Through the affirmation of his expert, a board certified internist with a subcertification in gastroenter-ology, Baiocco established his prima facie entitlement to judgment as a matter of law by showing that he fulfilled his duty of care by properly diagnosing and treating the specific condition for which Doe had consulted him, and by referring Doe to an immunologist for complete immunodeficiency testing, which was beyond the scope of Baiocco’s expertise as a gastroenterologist (see Covert v Walker, 82 AD3d 822, 823 [2011]; Ellis v Eng, 70 AD3d 887, 892 [2010]; Elias v Bash, 54 AD3d 354, 357…
discussed Cited as authority (rule) Braun v. Lewis
N.Y. App. Div. · 2014 · confidence medium
“A defendant may be held liable for ordinary negligence upon his or her failure to communicate significant medical findings to a patient or her treating physician” (Mosezhnik v Berenstein, 33 AD3d 895, 898 [2d Dept 2006]; see Yaniv v Taub, 256 AD2d 273, 274 [1st Dept 1998]).
discussed Cited as authority (rule) Braun v. Lewis
N.Y. App. Div. · 2014 · confidence medium
“A defendant may be held liable for ordinary negligence upon his or her failure to communicate significant medical findings to a patient or her treating physician” (Mosezhnik v Berenstein, 33 AD3d 895, 898 [2d Dept 2006]; see Yaniv v Taub, 256 AD2d 273, 274 [1st Dept 1998]).
discussed Cited as authority (rule) Mancuso v. Kaleida Health
N.Y. App. Div. · 2012 · confidence medium
While we agree with defendant that a mistake in taking a patient’s medical history is a claim that sounds in medical malpractice (see generally Bleiler v Bodnar, 65 NY2d 65 , 72 [1985]), the claim here concerns the “failure to communicate significant medical findings to a . . . treating physician,” and that claim sounds in ordinary negligence (Mosezhnik v Berenstein, 33 AD3d 895, 898 [2006]; see Glasheen v Long Is.
discussed Cited as authority (rule) Mancuso v. Kaleida Health
N.Y. App. Div. · 2012 · confidence medium
While we agree with defendant that a mistake in taking a patient’s medical history is a claim that sounds in medical malpractice (see generally Bleiler v Bodnar, 65 NY2d 65 , 72 [1985]), the claim here concerns the “failure to communicate significant medical findings to a . . . treating physician,” and that claim sounds in ordinary negligence (Mosezhnik v Berenstein, 33 AD3d 895, 898 [2006]; see Glasheen v Long Is.
discussed Cited as authority (rule) Parrilla v. Buccellato
N.Y. App. Div. · 2012 · confidence medium
Furthermore, the remaining allegations of malpractice cited by the plaintiff’s experts were conclusory and failed to differentiate between the acts and omissions of the different treatment providers (see Mosezhnik v Berenstein, 33 AD3d 895, 897 [2006]; Dellacona v Dorf, 5 AD3d 625, 625 [2004]; Kaplan v Hamilton Med.
discussed Cited as authority (rule) Aparicio v. Goldberg
N.Y. App. Div. · 2012 · confidence medium
Plaintiffs experts’ speculation and conclusory assertions that decedent would have otherwise had a more favorable prognosis is insufficient to establish causation (see Mosezhnik v Berenstein, 33 AD3d 895, 897 [2006]; Rodriguez v Montefiore Med.
discussed Cited as authority (rule) Vodos v. Coopersmith
N.Y. App. Div. · 2011 · confidence medium
However, in opposition, the plaintiffs raised a triable issue of fact as to whether the statute of limitations was tolled by the continuous treatment doctrine (see Gomez v Katz, 61 AD3d 108, 111 [2009]; Texeria v BAB Nuclear Radiology, P.C., 54 AD3d 1022 [2008]; Cherise v Braff, 50 AD3d 724, 726 [2008]; Mosezhnik v Berenstein, 33 AD3d 895, 896 [2006]).
discussed Cited as authority (rule) Covert v. Walker
N.Y. App. Div. · 2011 · confidence medium
In opposition, the plaintiffs failed to raise a triable issue of fact, as White had no further responsibility to independently diagnose the decedent’s condition (see Dockery v Sprecher, 68 AD3d 1043, 1045-1046 [2009]; Mosezhnik v Berenstein, 33 AD3d 895, 897 [2006]; Wasserman v Staten Is.
discussed Cited as authority (rule) Covert v. Walker
N.Y. App. Div. · 2011 · confidence medium
In opposition, the plaintiffs failed to raise a triable issue of fact, as Ramirez had no further responsibility to independently diagnose the decedent’s condition (see Dockery v Sprecher, 68 AD3d 1043, 1045-1046 [2009]; Mosezhnik v Berenstein, 33 AD3d 895, 897 [2006]; Wasserman v Staten Is.
cited Cited as authority (rule) Heller v. WeinBerg
N.Y. App. Div. · 2010 · confidence medium
Corp., 47 AD3d at 801; Mosezhnik v Berenstein, 33 AD3d 895, 897 [2006]).
discussed Cited as authority (rule) Chipley v. Stephenson
N.Y. App. Div. · 2010 · confidence medium
In any event, even assuming, arguendo, that the affirmation established that defendants’ treatment constituted a departure from accepted practice, I conclude that plaintiff failed to raise a triable issue of fact sufficient to defeat the motions because her expert did not ultimately conclude that defendants’ omissions or departures were a proximate cause of the injuries sustained by plaintiff and her son (see Pigut v Leary, 64 AD3d 1182 [2009]; Murray v Hirsch, 58 AD3d 701, 703 [2009]; Mosezhnik v Berenstein, 33 AD3d 895, 897 [2006]; cf. Selmensberger v Kaleida Health, 45 AD3d 1435, 1436 […
cited Cited as authority (rule) Dockery v. Sprecher
N.Y. App. Div. · 2009 · confidence medium
He did not assume a general duty of care to independently diagnose the patient’s medical condition (see Mosezhnik v Berenstein, 33 AD3d 895, 897 [2006]; Wasserman v Staten Is.
discussed Cited as authority (rule) O'Shea v. Buffalo Medical Group, P.C.
N.Y. App. Div. · 2009 · confidence medium
The burden then shifted to plaintiffs to raise triable issues of fact by submitting a physician’s affidavit both “ ‘attesting to a departure from accepted practice and containing the attesting [physician’s] opinion that the defendant’s omissions or departures were a competent producing cause of the injury’ ” (Mosezhnik v Berenstein, 33 AD3d 895, 896 [2006]; see Murray, 58 AD3d at 702-703 ; Poblocki v Todoro, 49 AD3d 1239 [2008]; Perro v Schappert, 47 AD3d 694 [2008]; DeCintio v Lawrence Hosp., 25 AD3d 320 [2006]; Rossi v Arnot Ogden Med.
discussed Cited as authority (rule) Pigut v. Leary
N.Y. App. Div. · 2009 · confidence medium
In any event, the affidavit of plaintiffs expert fails to establish that the alleged departures from accepted standards of care by Tobias were a proximate cause of injury to or the death of decedent (see Mosezhnik v Berenstein, 33 AD3d 895, 896 [2006]; Bowman, 30 AD3d 552 [2006]; see also Selmensberger v Kaleida Health, 45 AD3d 1435 [2007]).
cited Cited as authority (rule) Geffner v. North Shore University Hospital
N.Y. App. Div. · 2008 · confidence medium
Foley Skilled Nursing Facility, 45 AD3d 558 [2007]; Rebozo v Wilen, 41 AD3d 457, 458 [2007]; Mosezhnik v Berenstein, 33 AD3d 895, 896 [2006]).
discussed Cited as authority (rule) Texeria v. BAB Nuclear Radiology, P.C.
N.Y. App. Div. · 2008 · confidence medium
However, in opposition, the plaintiff raised a triable issue of fact as to whether the statute of limitations was tolled by the continuous treatment doctrine (see Cherise v Braff, 50 AD3d 724, 726 [2008]; Mosezhnik v Berenstein, 33 AD3d 895, 896 [2006]).
discussed Cited as authority (rule) Cohen v. Kalman
N.Y. App. Div. · 2008 · confidence medium
The affidavit of the plaintiffs expert, submitted in opposition, failed to raise an issue of fact as to whether the defendant’s alleged negligence was the proximate cause of her injuries (see Ennd v Kopp, 48 AD3d 740, 741 [2008]; Posokhov v Oselkin, 44 AD3d 921 [2007]; Starr v Rogers, 44 AD3d 646, 648 [2007]; Mosezhnik v Berenstein, 33 AD3d 895, 898 [2006]).
discussed Cited as authority (rule) Bennett v. Long Island Jewish Medical Center
N.Y. App. Div. · 2008 · confidence medium
On the facts presented, we cannot characterize as palpably improper or insufficient as a matter of law the amendment alleging that the defendants were negligent in failing to review the CT scan report and apprise the plaintiff of the results (see Mosezhnik v Berenstein, 33 AD3d 895, 898 [2006]; Glasheen v Long Is.
discussed Cited as authority (rule) Cherise v. Braff
N.Y. App. Div. · 2008 · confidence medium
Under the circumstances, where, inter alia, the plaintiff testified at her deposition that Cumberland’s physicians “told” her that she “ha[d] to go” to Cumberland “every year” for a “checkup” and a mammogram because of her “fibro,” an issue of fact exists as to whether the continuous treatment doctrine applies (see Mosezhnik v Berenstein, 33 AD3d 895, 896 [2006]; PrinzSchwartz v Levitan, 17 AD3d 175, 177-179 [2005]; Close v Gorman, 284 AD2d 1013, 1013-1014 [2001]; Oksman v City of New York, 271 AD2d at 215; Pace v Caron, 232 AD2d 617 [1996]).
discussed Cited as authority (rule) Dombroski v. Samaritan Hospital
N.Y. App. Div. · 2007 · confidence medium
Under these circumstances, we hold that Tigue—when confronted with lab results which did not indicate any immediate threat to the patient and were not related to Tigue’s treatment of plaintiffs trauma, and where plaintiff was being admitted to the hospital under another physician’s care—had no duty to take steps beyond noting the results in plaintiffs chart (see Huffman v Linkow Inst. for Advanced Implantology, Reconstructive & Aesthetic Maxillo-Facial Surgery, 35 AD3d 214, 216-217 [2006]; Mosezhnik v Berenstein, 33 AD3d 895, 897 [2006]).
discussed Cited as authority (rule) Sosnoff v. Jackman
N.Y. App. Div. · 2007 · confidence medium
In this case, there is an issue of fact as to whether the sonograms performed on the plaintiff pursuant to the protocol for the cancer detection research study were also prescribed to monitor her condition as a patient at high risk for ovarian cancer (see Mosezhnik v Berenstein, 33 AD3d 895, 896 [2006]; PrinzSchwartz v Levitan, 17 AD3d 175, 178-179 [2005]; Melup v Morrissey, 3 AD3d 391 [2004]; Kurland v McElwain, 231 AD2d 685, 686 [1996]).
discussed Cited as authority (rule) Texeria v. BAB Nuclear Radiology, P.C.
N.Y. App. Div. · 2007 · signal: cf. · confidence medium
However, in opposition, the plaintiff raised a triable issue of fact as to whether the statute of limitations as to Singh was tolled by the continuous treatment doctrine (see Elkin v Goodman, 285 AD2d 484, 486 [2001]; cf. Mosezhnik v Berenstein, 33 AD3d 895, 896 [2006]).
discussed Cited "see" Mann v. Okere
N.Y. App. Div. · 2021 · signal: see · confidence high
As explored supra , those medical records show that it was Hudson Valley's regular practice to provide a recommendation of further clinical care and diagnostic testing depending on the decedent's symptoms at the time of the mammogram, as well as the results of the mammogram ( see Romanelli v Jones , 179 AD3d at 855-856 ; see generally Mosezhnik v Berenstein , 33 AD3d at 897 ).
discussed Cited "see, e.g." Reid v. Soults
N.Y. App. Div. · 2016 · signal: see also · confidence medium
Thus, the radiologists established that any departures in their interpretation of the CT scans were not a proximate cause of the claimed injuries (see Elkin v Goodman, 24 AD3d 717, 719 [2005]; see also Mosezhnik v Berenstein, 33 AD3d 895, 896-898 [2006]).
discussed Cited "see, e.g." Reid v. Soults
N.Y. App. Div. · 2016 · signal: see also · confidence medium
Thus, the radiologists established that any departures in their interpretation of the CT scans were not a proximate cause of the claimed injuries (see Elkin v Goodman, 24 AD3d 717, 719 [2005]; see also Mosezhnik v Berenstein, 33 AD3d 895, 896-898 [2006]).
Retrieving the full opinion text from the archive…
Tamara Mosezhnik
v.
Anna Berenstein, and Anita Moallem
Appellate Division of the Supreme Court of the State of New York.
Oct 24, 2006.
33 A.D.3d 895
Cited by 37 opinions  |  Published

In an action, inter alia, to recover damages for medical mal[*896] practice, the plaintiff appeals, as limited, by her notice of appeal and brief, from so much of an order of the Supreme Court, Kings County (Rosenberg, J.), dated January 14, 2005, as amended by an order of the same court dated March 12, 2005, as granted those branches of the motion of the defendants Doshi Diagnostic Imaging Services and Anita Moallem which were for summary judgment dismissing the medical malpractice causes of action insofar as asserted against them and the negligence cause of action involving mammograms conducted on June 19, 1999, and June 2, 2001, insofar as asserted against Doshi Diagnostic Imaging Services.

Ordered that the order, as amended, is affirmed insofar as appealed from, with costs, and upon searching the record, that branch of the motion which was for summary judgment dismissing the negligence cause of action involving a mammogram conducted on April 26, 2000, insofar as asserted against Doshi Diagnostic Imaging Services is granted and so much of the order dated April 26, 2000, as denied that branch of the motion is vacated.

Summary judgment dismissing all of the medical malpractice causes of action asserted against the defendant Doshi Diagnostic Imaging Services (hereinafter Doshi Imaging) and the defendant Anita Moallem (hereinafter Dr. Moallem) was properly granted. Contrary to the Supreme Court’s conclusion, there are triable issues of fact as to whether the medical malpractice causes of action involving the June 19, 1999, mammogram should be deemed timely under the continuous treatment doctrine as there is evidence that Doshi Imaging and its radiologists were monitoring the density of the plaintiffs breasts from 1997 to 2001, by interpreting mammography films and comparing prior mammogram results (see Prinz-Schwartz v Levitan, 17 AD3d 175, 178-179 [2005]; Elkin v Goodman, 285 AD2d 484, 486 [2001]; Canter v East Nassau Med. Group, 270 AD2d 381 [2000]; Pace v Caron, 232 AD2d 617 [1996]; Kurland v McElwain, 231 AD2d 685, 686 [1996]; CPLR 214-a). Nevertheless, after those defendants made a prima facie showing of their entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact as to the requisite element of proximate cause (see Anderson v Lamaute, 306 AD2d 232, 233 [2003]). In a medical malpractice action, “a plaintiff must submit a physician’s affidavit of merit attesting to a departure from accepted practice and containing the attesting doctor’s opinion that the defendant’s omissions or departures were a competent producing cause of the injury” (Domaradzki v Glen Cove Ob/Gyn Assoc., 242 AD2d 282, 282 [1997]; see Alvarez v [*897] Prospect Hosp., 68 NY2d 320, 324 [1986]; Anderson v Lamaute, supra at 233). Here, the plaintiff submitted an expert affidavit in which the expert opined that Dr. Moallem departed from accepted practice by overlooking an “architectural distortion” evident in the plaintiffs left breast. The expert, however, failed to explain how Dr. Moallem’s departure was a proximate cause of the plaintiffs injuries. The expert merely opined that the collective departures by the defendants resulted in a delayed diagnosis and treatment, and a less favorable prognosis. Such conclusory opinions were insufficient to raise a triable issue of fact concerning proximate cause (see Dellacona v Dorf, 5 AD3d 625 [2004]; Kaplan v Hamilton Med. Assoc., 262 AD2d 609, 610 [1999]; Yasin v Manhattan Eye, Ear & Throat Hosp., 254 AD2d 281, 283 [1998]; see also Amsler v Verrilli, 119 AD2d 786, 787 [1986]; cf. McMahon v Badia, 195 AD2d 445, 446 [1993]).

Similarly, the plaintiff failed to raise a triable issue of fact as to proximate cause with respect to the malpractice causes of action against Doshi Imaging involving the April 26, 2000, and June 2, 2001, mammograms. Moreover, the plaintiff and her expert, in effect, conceded that the radiologists committed no departure with regard to the findings after those mammograms. Accordingly, the Supreme Court properly granted summary dismissing those causes of action (see Amsler v Verrilli, supra at 786-787).

The plaintiffs contention that the radiologists at Doshi Imaging departed from accepted practice by failing to appreciate the gravity of the situation and schedule immediate testing, overlooks the limited nature of the legal obligations of Doshi Imaging and its radiologists concerning her treatment. “Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient” (Chulla v DiStefano, 242 AD2d 657, 658 [1997]; see Markley v Albany Med. Ctr. Hosp., 163 AD2d 639, 640 [1990]). Here, none of the radiologists at Doshi Imaging were the plaintiffs treating physicians. The radiologists had the limited role of interpreting mammography films and documenting their findings. Neither Doshi Imaging nor Dr. Moallem assumed a general duty of care to schedule or urge further testing, or diagnose the plaintiffs medical conditions (see Wasserman v Staten Is. Radiological Assoc., 2 AD3d 713, 714 [2003]; Giberson v Panter, 286 AD2d 217 [2001]).

The plaintiffs remaining causes of action against Doshi Imaging sound in ordinary negligence rather than medical malpractice (see Glasheen v Long Is. Diagnostic Imaging, 303 AD2d

[*898] 365, 367 [2003]; Yaniv v Taub, 256 AD2d 273, 274 [1998]; McKinney v Bellevue Hosp., 183 AD2d 563, 564-565 [1992]). A defendant may be held liable for ordinary negligence upon his or her failure to communicate significant medical findings to a patient or her treating physician (see Glasheen v Long Is. Diagnostic Imaging, supra at 367; Matter of Caracci v State of New York, 178 AD2d 876, 877 [1991]). The plaintiff asserts that Doshi Imaging was negligent and violated the Mammography Quality Standards Act (hereinafter MQSA) by failing to mail letters to her sufficiently relating the mammography findings (see 42 USC § 263b [f] [1] [G] [ii]). Although a violation of a statute is probative of negligence, a negligence cause of action must fail absent a showing of proximate cause (see generally Bauer v Female Academy of Sacred Heart, 97 NY2d 445, 453-454 [2002]; Basso v Miller, 40 NY2d 233, 242 [1976]; Martin v Herzog, 228 NY 164, 168 [1920]; Ragona v Hamilton Hall Realty, 251 AD2d 391, 392 [1998]; O’Leary v American Airlines, 100 AD2d 959, 959-960 [1984]).

Here, the plaintiff cannot demonstrate that Doshi Imaging’s purported failure to adequately communicate the mammography results or comply with the MQSA was the proximate cause of a delayed diagnosis or damages. The overwhelming evidence in the record demonstrates that the plaintiff or her treating physician Dr. Berenstein obtained all the mammography reports or the results thereof from Doshi Imaging (see Glasheen v Long Is. Diagnostic Imaging, supra at 367). Consequently, the Supreme Court properly granted summary judgment dismissing the negligence causes of action against Doshi Imaging involving the June 19, 1999, and June 2, 2001, mammograms. Further, upon searching the record, the remaining negligence cause of action involving the April 26, 2000, mammogram should be dismissed. Miller, J.E, Crane, Santucci and Luciano, JJ., concur.