Appellate Division of the Supreme Court of New York, 2011

Guzzi v. Gewirtz

Appellate Division of the Supreme Court of New York · Decided March 8, 2011

82 A.D.3d 838; 918 N.Y.2d 552

Cases that cite this one

17 later published cases cite this decision.

Barnett v. Fashakin (Appellate Division of the Supreme Court of New York 2011)
Hayden v. Gordon (Appellate Division of the Supreme Court of New York 2012)
Smith v. Mollica (Appellate Division of the Supreme Court of New York 2018)
Gattling Ex Rel Gattling v. Sisters of Charity Medical Center (Appellate Division of the Supreme Court of New York 2017)
Vidito v. Hugelmeyer (Appellate Division of the Supreme Court of New York 2017)
Harris v. Saint Joseph's Medical Center (Appellate Division of the Supreme Court of New York 2015)
Bhim v. Dourmashkin (Appellate Division of the Supreme Court of New York 2014)
Ahmed v. Pannone (Appellate Division of the Supreme Court of New York 2014)
Ahmed v. Pannone (Appellate Division of the Supreme Court of New York 2014)
Giambona v. Hines (Appellate Division of the Supreme Court of New York 2013)
Giambona v. Hines (Appellate Division of the Supreme Court of New York 2013)
Poter v. Adams (Appellate Division of the Supreme Court of New York 2013)
Poter v. Adams (Appellate Division of the Supreme Court of New York 2013)
Heit v. Long Island Jewish Medical Center (Appellate Division of the Supreme Court of New York 2012)
Bendel v. Rajpal (Appellate Division of the Supreme Court of New York 2012)
Bendel v. Rajpal (Appellate Division of the Supreme Court of New York 2012)
Orsi v. Haralabatos (Appellate Division of the Supreme Court of New York 2011)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CELR 5501 [a] [1]).

“The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury” (DiMitri v Monsouri, 302 AD2d 420, 421 [2003]; see Wexelbaum v Jean, 80 AD3d 756, 757 [2011]; Roca v Perel, 51 AD3d 757, 758 [2008]). Where a defendant in a medical malpractice action, in moving for summary judgment, makes only a prima facie showing that he or she did not deviate or depart from accepted medical practice, the plaintiff, in order to defeat summary judgment, need only raise a triable issue of fact as to the alleged deviation or departure, and need not address the issue of proximate cause (see Stukas v Streiter, 83 AD3d 18 [2d Dept 2011]). [decided herewith]).

*839Here, the defendant llene Gewirtz established her prima facie entitlement to judgment as a matter of law on the issue of deviation or departure from accepted medical practice by submitting, inter alia, an expert affirmation that she did not depart from accepted standards of care. In opposition, however, the plaintiffs, by the submission of an affidavit of their medical expert, raised a triable issue of fact as to whether Gewirtz’s treatment of the plaintiff Marie Sammartino Guzzi departed from accepted standards of medical practice (see generally Johnson v Queens-Long Is. Med. Group, P.C., 23 AD3d 525, 527 [2005]; Zarzana v Sheepshead Bay Obstetrics & Gynecology, 289 AD2d 570, 571 [2001]; Walker v Mount Vernon Hosp., 272 AD2d 468 [2000]).

Therefore, the Supreme Court erred in granting Gewirtz’s motion for summary judgment dismissing the complaint insofar as asserted against her. Covello, J.E, Florio, Eng and Chambers, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.