SCOTT LINSKY ABBY LINSKY v. IRA STEINMETZ MOSHE KERSTEIN BEDFORD MEDICAL FAMILY HEALTH CENTER (2026)

Recitation, as required by CPLR 2219 (a), of the papers considered in the review:

NYSCEF #s: Seq. 4: 66-81, 88-89, 164-166, 171-173

Seq. 5: 84-87, 90-91, 167-168, 170, 174

Defendants Ira Steinmetz, M.D. ("Dr. Steinmetz") and Ira M. Steinmetz, M.D. P.C. move for an Order, pursuant to CPLR 2004, permitting an extension of time to move for summary judgment. Upon permission, they seek summary judgment in their favor pursuant to CPLR 3212 and dismissal of Plaintiff's claims against them. In the alternative, Defendants move for partial summary judgment pursuant to CPLR 3212 (e) and (g), dismissal of Plaintiff's wife direct personal-injury claims pursuant to CPLR 3211 (a) (7), and leave to amend their Answer to include the affirmative defense of culpable conduct (Seq. No. 4).

Defendant Moshe Kerstein, M.D. ("Dr. Kerstein") separately moves for an Order, pursuant to CPLR 3212, granting summary judgment in his favor and dismissing the action against him, or in the alternative, pursuant to CPLR 3211 (a) (3), dismissing the claims of Plaintiff's wife on the grounds that she lacks legal capacity or standing, and for such other and further relief as the Court deems just, proper, and equitable. Defendant Dr. Kerstein also makes an application in the moving papers to extend his time for filing the summary judgment branch of the motion (Seq. No. 5).

Plaintiff opposes both motions on the basis of their untimeliness and on the merits.

On the timeliness issue, Plaintiff rejected both defendants' summary judgment motions as untimely, as they had filed their Note of Issue on November 7, 2025. Defendant Dr. Steinmetz's motion was filed February 9, 2026 (94 days after the Note of Issue), and Defendant Dr. Kerstein's motion was filed on February 12, 2026 (97 days after the Note of Issue).

Plaintiff argues that these dispositive motions were over one month late pursuant to the Preliminary Conference Order issued by the Central Compliance Part on July 22, 2021, which stated "Summary judgment motions shall be made no later than 60 days after filing of the Note of Issue. This time limit may only be extended by motion upon 'good cause shown.' " The Court notes that at the time the Note of Issue was filed, the case was assigned to the Hon. Ellen Spodek, who has since retired. Her Honor's Part Rules stated that dispositive motions must be made within 90 days, or with leave of the court upon good cause shown.

Upon Judge Spodek's retirement, the undersigned justice inherited her inventory of cases. For the sake of continuity, this Court has adopted the 90-day rule for any Note of Issue filed on or before November 1, 2026. Thus, contrary to the language in the initial Preliminary Conference Order, this Court finds that the 90-day deadline of the Part Rules governed this action and superseded any rule set forth by the Central Compliance Part (see CPLR 3212 [a] ["the court may set a date after which no such motion may be made . . . except with leave of court on good cause shown"]).

Notwithstanding, Plaintiff argues in opposition that even if the 90-day rule was in effect, that period expired on February 5, 2026. The motions were therefore only four and seven days beyond the 90-day deadline.

The Court also notes that Plaintiff filed the Note of Issue and Certificate of Readiness early, on November 7, 2025, as the last Compliance Conference Order directed the Note of Issue to be filed "on or before June 5, 2026." Defendant Dr. Steinmetz moved on November 26, 2025 to strike said Note of Issue, or to allow further post-Note of Issue discovery and extend their deadline to move for summary judgment. This motion was brought within 20 days of the allegedly premature Note of Issue, pursuant to the Uniform Court Rules 202.21 (e). The defendant contended that significant discovery remained outstanding at that time, including the nonparty depositions of Decedent's daughters and responses to demands for authorizations. Decedent's wife (Plaintiff-administrator of his estate) and his adult son had already been deposed by April 2025. Decedent also had three daughters who were over the age of 18 at the time of his death, and the defendants sought depositions from them.

The discovery motion (Seq. No. 3) was decided in a Central Compliance Part decision and order dated January 12, 2026. The motion was granted to the extent of ordering Plaintiff to provide "all outstanding discovery responses and authorizations" by February 27, 2026  ¹ . The Note of Issue was not vacated, and the court stated that "all relief not expressly granted" was denied. The part of the discovery motion seeking an extension of time to file dispositive motions was not expressly granted, as it was not within the discretion of the Central Compliance Part, and that branch of the motion was not referred to the undersigned medical malpractice judge. The application for this relief is therefore considered by the undersigned for the first time herein.

An extension of time to file a summary judgment motion may be permitted with leave of the court upon good cause shown (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648 [2004]). To demonstrate good cause, the movant must provide "a satisfactory explanation for the untimeliness" (Brill at 652). It is the excuse for the delay, rather than the underlying merits, that determines whether good cause exists to consider the late summary judgment motion (Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 727 [2004]). Outstanding discovery post-Note of Issue is one factor that may constitute good cause, where that discovery is "relevant to resolving disputed issues of fact" and "the party promptly moves for summary judgment after securing such discovery" (Fuczynski v 144 Div., LLC, 208 AD3d 1153, 1155 [2d Dept 2022]). The court may also "accept law office failure as a reasonable excuse . . . where the claim is supported by a detailed and credible explanation for the default," rather than amounting to a "perfunctory claim of law office failure" (Lanza v M-A-C Home Design and Constr. Corp., 188 AD3d 855, 856 [2d Dept 2020]).

Although this action was not officially stayed while the discovery motion was pending, the timeline for filing dispositive motions may be extended by a motion to vacate a premature Note of Issue and compel additional discovery pursuant to Uniform Court Rules 202.21 (e), as the decision on that motion will determine whether the Note of Issue is stricken. Here, both defendants moved for summary judgment less than one month after the discovery motion was resolved.

Defendant Dr. Steinmetz's counsel states that the outstanding discovery, including the depositions of the nonparty daughters, were essential before their motion could be filed. In their moving papers, counsel states that these depositions "would potentially provide essential information," including "conversations they had with the decedent regarding his complaints and medical treatment during the relevant time period between June 13, 2019 and June 23, 2019." The demand for these witnesses was not new, as an order dated August 26, 2024 stated that Plaintiff would "advise whether they will voluntarily produce [Decedent's] three daughters for EBTs or provide their last known addresses" by September 6, 2024. Another discovery order dated March 12, 2025 set forth that "any depositions of nonparty witnesses, to the extent not completed" would be held on or before June 30, 2025.

Defendant's counsel affirms that there had been "conversations between counsel since December 2024" that Plaintiff would stipulate to withdraw any wrongful death damages on behalf of the three daughters "in exchange for not producing them for deposition, to spare them the trauma of testifying." Plaintiff's counsel did not sign the aforementioned stipulation until January 29, 2026, 83 days after filing the Note of Issue and only one week before the summary judgment deadline.

Ultimately, Defendant's request for the daughters' depositions was withdrawn after this stipulation to withdraw their wrongful death claims was circulated on January 29, 2026. Defendant argues that they were unable to "move on a complete record" prior to that date. Although some requested discovery remained outstanding (text messages and cell phone records), Defendant's counsel ultimately moved for summary judgment "as expeditiously as possible" following the January 12, 2026 court order and the January 29, 2026 stipulation. The instant motion was filed less than two weeks after the January 29 stipulation, and was still only four days past the original 90-day deadline from the Note of Issue, even accounting for the intervening discovery motion practice.

Defendant Dr. Kerstein's counsel similarly sets forth their reasons for the late motion in their supporting papers. They argue that Plaintiff filed the Note of Issue approximately eight months prior to the anticipated Note of Issue date, which was June 5, 2026 in their last so-ordered Compliance Conference order. Further, they argue that the co-defendant's "timely, pending motion to extend or vacate the note of issue" constituted a reasonable excuse for the delay, as they relied on the "unsettled procedural posture of the case and the expectation that the summary judgment deadline would be reset upon resolution of the extension motion." They filed their motion less than a month after the resolution of that motion, and seven days past the original 90-day period.

In opposition, Plaintiff argues that no outstanding discovery or depositions were "essential" to the underlying summary judgment motions, and therefore the good cause extension under Brill should not be permitted. They also argue that Dr. Kerstein failed to seek a vacatur of the Note of Issue as co-defendant Dr. Steinmetz did, and therefore they did not present a reasonable excuse for the delay.

The Court finds based on the explanations herein that both Defendants Dr. Steinmetz and Dr. Kerstein have made a showing of good cause to extend their time to move for summary judgment.

Both defendants have provided a detailed and reasonable excuse for the delay in filing their summary judgment motions. The parties adequately set forth reasons why they required resolution of the pending motion before a summary judgment motion could be filed, and that they asked the court to "reset" the clock by vacating the Note of Issue. The timeline of filing dispositive motions was complicated by ongoing discovery motion practice, as Dr. Steinmetz's motion to vacate the Note of Issue was decided and further discovery was ordered in January 2026.

Furthermore, Defendants have established that the nonparty depositions of Decedent's adult daughters were essential not only for their own wrongful death claims, but to address the facts and allegations regarding Decedent's medical treatment and their recollections of the symptoms and/or medical history he reported to his treating physicians. Defendants could not move forward seeking summary judgment on all causes of action until January 29, 2026, when the daughters' claims were withdrawn and no further depositions remained outstanding. Once this discovery issue was resolved, both defendants promptly filed their summary judgment motions within two weeks (c.f. Ragoonanan v 43-25 Hunter, LLC, 214 AD3d 831, 832 [2d Dept 2023] [in that case, movant did not show the deposition was essential and did not justify the additional two-month delay after it was completed]).

For these reasons, the Court finds both defendants have shown good cause, and the Court in its discretion will accept and consider the summary judgment motions (Seq. No. 4 & 5) which were filed four and seven days late, respectively, pursuant to Brill and CPLR 2004.

Plaintiff commenced this action on February 4, 2021, asserting claims of medical malpractice, lack of informed consent, and negligent hiring on behalf of Decedent's estate. Plaintiff's medical malpractice claims arise from an alleged failure to timely diagnose and treat a pulmonary embolism in June 2019. Plaintiff Abby Linsky, Decedent's wife, asserts her own cause of action for personal injuries arising from a motor vehicle accident on June 23, 2019, when Decedent fainted while driving. She also asserts a wrongful death claim.

Plaintiff does not oppose the part of Defendants' motions seeking dismissal of the lack of informed consent or negligent hiring claims. Accordingly, those causes of action are dismissed without opposition.

On June 13, 2019, Decedent presented to his primary care physician, Dr. Steinmetz, with complaints of cold-like symptoms, including cough and shortness of breath, for two days. He also reported back pain and right ankle pain. Dr. Steinmetz documented Decedent's family history as significant for pulmonary embolism, which Decedent's twin brother had previously survived.

During the June 13 appointment, Dr. Steinmetz performed a physical examination. Decedent presented decreased breath sounds, but normal breath count, blood pressure, oxygen saturation and EKG results negative for a pattern associated with a pulmonary embolism. Dr. Steinmetz also ordered a chest x-ray to examine for pneumonia and pulmonary embolism and ordered an expeditious (same day) venous doppler test, a specific ultrasound to rule out deep vein thrombosis. Dr. Steinmetz documented that Decedent had a past medical history of pneumonia, but he had never had a pulmonary embolism or deep vein thrombosis.

The x-ray and venous doppler were performed at Marine Park Radiology and results were reported to Dr. Steinmetz on June 13. The x-ray was significant for bilateral pneumonia and the venous doppler did not reveal blood clots in Decedent's legs, thus he was negative for deep vein thrombosis. Dr. Steinmetz prescribed antibiotics, Levaquin and Doxycycline, for pneumonia and determined Decedent did not have a pulmonary embolism at this point.

On June 14, 2019, Decedent returned to Dr. Steinmetz. Dr. Steinmetz discussed the chest x-ray findings of pneumonia and the lack of blood clots from the doppler study with Decedent. Decedent presented with less pain, decreased coughing, expiratory rhonchi on his lungs and normal respiration. Dr. Steinmetz assessed that Decedent's pneumonia was responding to the antibiotics and suggested that Decedent continue the antibiotics, drink fluids, and rest.

On June 18, Decedent presented to Dr. Steinmetz for a final time. Dr. Steinmetz noted that Decedent had a slight fever of 99.2, no back or side pain, decreased wheezing, and a cough with phlegm. Dr. Steinmetz performed a physical examination, and recorded that Decedent's oxygen saturation, respiratory rate, and heart rate were normal. He documented that Decedent's lung examination revealed occasional rhonchi, but had improved from the prior week's visit. Dr. Steinmetz referred Decedent to pulmonologist Dr. Kerstein due to concerns regarding his pneumonia and persistent cough.

On June 19, Decedent presented to pulmonologist Dr. Kerstein. Dr. Kerstein noted Decedent developed a cough approximately 10 days prior to his visit, had pneumonia, and had started Levofloxacin and Doxycycline six days prior. He also noted that he reviewed Decedent's negative doppler study results from June 13. Upon Dr. Kerstein's physical examination, Decedent had a normal temperature, resolved upper back pain, persistent wheezy cough spasms but clear lungs, normal heart rate, and normal respiratory rate. He had no signs or complaints of shortness of breath, cardiac arrhythmia, feeling faint, or coughing with blood. He also had no sputum, cyanosis clubbing or edema, and he could sleep at night despite coughing. Dr. Kerstein's impression was persistent pneumonitis and acute tracheitis, since Decedent's wheezing cough persisted despite six days of antibiotics. Dr. Kerstein then recommended continuing Decedent's medications including Doxycycline, Vibramycin, Omeprazole, tapering doses of Prednisone, adding Tessalon, discontinuing Levofloxacin, and following up with a chest x-ray in two weeks.

On June 23, 2019, Decedent was driving his car when he started coughing and lost consciousness, colliding into another vehicle. His spouse and other family members were passengers in the vehicle, and all were taken to Jamaica Hospital with serious injuries. Upon arrival, Decedent complained of right-sided chest pain, reported he was being treated for pneumonia with antibiotics and steroids, and that he now felt trouble breathing. Decedent's initial vital signs revealed a heart rate of 111, respiratory rate of 16, and oxygen saturation in the 90s. Shortly after, he became hypoxic with an oxygen saturation of 76% and a respiratory rate of 36; Jamaica Hospital's trauma team was activated.

A CT scan of Decedent's chest was performed, revealing a sternal fracture with a small adjacent mediastinal hematoma and a saddle type pulmonary embolism, which traversed both the right and left pulmonary arteries. A chest x-ray also revealed atelectasis. Decedent was diagnosed with acute bilateral saddle pulmonary embolism extending into both lungs.

Decedent was moved to the ICU to address the pulmonary embolism. A direct thrombolysis and tPA infusion were performed. He was transitioned to a heparin drip on June 24. Due to Decedent's worsening condition overnight between June 24 into June 25, he was intubated and required mechanical ventilation. He went into cardiac arrest in the morning of June 25. Advanced Cardiovascular Life Support was performed, but he could not be resuscitated and was pronounced dead at 9:58 a.m.

Plaintiff alleges that Defendants departed from good and accepted medical standards in Dr. Steinmetz's treatment of Decedent during the office visits on June 13, June 14, and June 18, 2019, and Dr. Kerstein's treatment on June 19, 2019. Generally, Plaintiff alleges that the primary care physician Dr. Steinmetz and pulmonologist Dr. Kerstein failed to perform an adequate workup, examination, and evaluation, allowing untreated clots to develop into a pulmonary embolism.

Plaintiff's bill of particulars specifically alleges that the defendants failed to perform a CT scan to rule out pulmonary embolism, and asserts broad and general claims that they "failed to perform proper testing" and "failed to order all appropriate tests, scans, and/or imaging studies that would have yielded the fact that the Decedent was suffering from blood clots."

Plaintiff further opines that these departures worsened his condition and proximately caused his death on June 25, 2019. Additionally, Plaintiff alleges that the departures were a proximate cause of the personal injuries sustained by Decedent's wife in the June 23 motor vehicle accident.

In evaluating a summary judgment motion in a medical malpractice case, the Court considers the "essential elements" of medical malpractice: (1) a deviation or departure from accepted medical practice and (2) evidence that such departure was a proximate cause of injury (or death) (Miller-Albert v EmblemHealth, 231 AD3d 1147, 1148 [2d Dept 2024] [internal quotation marks and citations omitted]). "Thus, a defendant moving for summary judgment must make a prima facie showing either that there was no departure from accepted medical practice, or that any departure was not a proximate cause of the patient's injuries. To meet that burden, a defendant must submit in admissible form factual proof, generally consisting of affidavits, deposition testimony and medical records, to rebut the claim of malpractice." (Id.) "If the defendant makes such a showing, the burden shifts to the plaintiff to raise a triable issue of fact as to those elements on which the defendant met its prima facie burden of proof" (Delia v Wieder, 236 AD3d 857, 858 [2d Dept 2025]). "Generally, summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions" (Garcia v Hollander, 241 AD3d 651, 653 [2d Dept 2025] [internal quotation marks and citations omitted]). However, "expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact" (Barnaman v Bishop Hucles Episcopal Nursing Home, 213 AD3d 896, 898-899 [2d Dept 2023]).

In support of the motion of Dr. Steinmetz, individually and on behalf of his professional corporation, the movant submits an expert affirmation from Charles L. Bardes, M.D. ("Dr. Bardes"), a licensed physician board certified in internal medicine.

Dr. Bardes opines that on June 13, Dr. Steinmetz complied with proper standards of medical care on initial treatment of the Decedent. The expert opines that Dr. Steinmetz appropriately deemed a pulmonary embolism unlikely based on his examination and tests. Dr. Bardes notes, based on the medical records, that Decedent presented to Dr. Steinmetz with complaints of being sick for two days with a cough, back pain, and shortness of breath, and he informed Dr. Steinmetz about his twin's pulmonary embolism. The expert opines that Dr. Steinmetz properly accounted for Decedent's increased risk of pulmonary embolism due to his family history by including pulmonary embolism as part of his differential diagnosis.

However, Dr. Bardes opines that the pulmonary embolism and Prothrombin 20210 mutation of Decedent's twin brother did not warrant further action of Dr. Steinmetz on behalf of Decedent. Dr. Bardes explains that it is not the standard of care to test a patient for Prothrombin 20210 or to provide any type of prophylactic treatment unless the patient had a prior blood clot, which was not present in Decedent's case. Dr. Bardes opines that while a familial mutation increases thrombotic risk, pulmonary embolism was appropriately investigated and determined to be "highly unlikely" on June 13 based on his symptoms, confirmed pneumonia infection, and negative venous doppler test results.

Dr. Bardes notes that on examination, Decedent's respiratory rate, body temperature, and oxygen saturation were normal, his blood pressure was 120/60, he had an acute pneumonia infection, and he had no history of pulmonary embolism or deep vein thrombosis. Dr. Steinmetz then performed an EKG, which was normal and negative for a pattern associated with pulmonary embolism. Based on all these factors, Dr. Bardes opines that Dr. Steinmetz properly determined a pulmonary embolism was unlikely in his differential diagnosis on that date.

Additionally, Dr. Bardes opines that since Dr. Steinmetz referred Decedent for a "STAT" chest x-ray and venous doppler test, arranged for their performance, and documented the results that same day, he acted within proper medical standards. Dr. Bardes opines that the doppler ultrasound's negative result for deep vein thrombosis and the chest x-ray's result of bilateral pneumonia with no pleural effusions nor atelectasis supported a decreased suspicion for pulmonary embolism. Dr. Bardes opines that Dr. Steinmetz properly started the patient on antibiotics (Levaquin and Doxycycline) for pneumonia and directed him for further assessment the following day on June 14.

Dr. Bardes opines that Dr. Steinmetz's impression on June 14 of improving pneumonia and further instruction based on such diagnosis to Decedent was appropriate. Dr. Bardes specifies that on June 14, Decedent reported continued weakness, less pain, and a decreased cough. Dr. Steinmetz performed a physical examination showing expiratory rhonchi in Decedent's lungs, but he had normal respiratory rate, oxygen saturation, and pulse; Dr. Bardes opines that all these results were consistent with a diagnosis of pneumonia. Thus, Dr. Bardes opines that his treatment plan to continue antibiotics, increase fluids, rest, and schedule a follow-up appointment was proper here.

Dr. Bardes opines that Dr. Steinmetz's June 18 follow-up appointment with Decedent remained consistent with pneumonia which was "clinically improving," and inconsistent with pulmonary embolism, based on Decedent's complaints, physical examination, testing, and prior visits. On June 18, Decedent reported no back pain, presented a questionable fever, sweating, and decreased wheezing. Dr. Bardes opines that decreased wheezing is specifically "entirely consistent" with a diagnosis of improving pneumonia. Dr. Bardes further opines that Dr. Steinmetz appropriately performed a physical examination, which showed Decedent's oxygen saturation and respiratory rate were normal, and that his breath sounds had occasional rhonchi and a cough with phlegm, which had improved since the prior appointment. Dr. Bardes opines that on June 18, 2019, Dr. Steinmetz properly referred the patient to a pulmonary medicine specialist, Dr. Kerstein, based on Decedent's persistent cough, phlegm, and a low-grade fever, consistent with ongoing pneumonia.

Regarding proximate cause, Dr. Bardes opines that there was no causal link between Dr. Steinmetz's treatment of Decedent from June 13-June 18 and the saddle pulmonary embolism that Decedent was diagnosed with at Jamaica Hospital on June 23, which caused his death. Dr. Bardes notes that according to the Jamaica Hospital record, Decedent's pulmonary embolism occurred approximately 48 hours before his death, or five days after Dr. Steinmetz last treated the Decedent. Dr. Bardes opines that symptoms and signs typically associated with saddle pulmonary embolism, such as hypoxia, hypotension, and severe dyspnea at rest, were not reflected in treatment records of Dr. Steinmetz's office visits. Instead, Dr. Bardes furthers that the relatively normal results in the records, such as oxygen saturations and respiratory rates, in tandem with symptom improvement on antibiotics, are inconsistent with massive saddle pulmonary embolism.

Dr. Bardes opines that Jamaica Hospital's findings of hemodynamic deterioration, right ventricular strain, respiratory failure, hypoxia, and hypotension reflected a massive thromboembolic event supporting an acute event just before the vehicle accident, distinct from the clinical picture documented by Dr. Steinmetz's treatment. Dr. Bardes explains that Decedent could have not had a saddle pulmonary embolism between June 13-18 with normal oxygen saturations, respiratory rates, and heart rates, no shortness of breath or chest pain, and reports of feeling better with antibiotics. Thus, Dr. Bardes opines that even if a CT scan was performed between June 13-18, 2019, it would not have diagnosed a pulmonary embolism, based on his clinical symptoms and the subsequent CT scan at Jamaica Hospital.

Based on these submissions, the movants have established prima facie entitlement to summary judgment on behalf of Dr. Steinmetz and Ira Steinmetz, M.D., P.C., regarding the medical malpractice claim. They have proffered expert opinions that Dr. Steinmetz properly performed an adequate workup, examination, evaluation, and treatment of Decedent. Further, the expert sets forth an opinion that based on his "entire clinical presentation," Decedent was properly diagnosed and treated for pneumonia by Dr. Steinmetz, and no additional testing was required by the standard of care to rule out the low likelihood of pulmonary embolism.

The movants have also established prima facie that no departure from the standard of care by Dr. Steinmetz was a proximate cause of Plaintiff's claimed injuries, providing an expert opinion that the pulmonary embolism was an acute event which developed days after his last treatment with Dr. Steinmetz, and it could not have been foreseen or prevented by Dr. Steinmetz even if a CT scan had been performed between June 13-18. The burden therefore shifts to Plaintiff to raise issues of fact for both elements of the medical malpractice claim.

In opposition to Dr. Steinmetz's motion, Plaintiff submits an expert affirmation from Hooman Poor, M.D. ("Dr. Poor"), a licensed physician board certified in pulmonary disease, critical care medicine, and internal medicine.

Dr. Poor opines that Dr. Steinmetz identified the possibility of a pulmonary embolism in his differential diagnosis of June 13, 2019, but failed definitively to rule it out with the proper diagnostic tools available to him.

Specifically, Dr. Poor opines that although Dr. Steinmetz ordered an EKG, chest x-ray and a venous doppler on June 13, "none of these diagnostic tools can definitively identify a pulmonary embolism." Dr. Poor explains that the June 13 venous doppler test showed no deep vein thrombosis, but that this test does not necessarily rule out the possibility that a blood clot in the legs had already advanced into the lungs. Dr. Poor opines that since pulmonary embolism begins as a blood clot in the legs and then moves into the lungs, venous doppler tests only detect blood clots in the lower extremities. Thus, he opines that the test is a "snapshot" in time which only showed Decedent did not have a deep vein thrombosis at the time of administering the test, but it did not fully rule out that he had either a clot that already advanced to the lungs, or a clotting disorder and "propensity" to form clots.

Dr. Poor opines that "CT imaging is the correct tool to identify pulmonary emboli." He notes that Decedent himself specifically asked for a chest CT scan on June 13, and opines that Dr. Steinmetz departed from the standard of care by not ordering this test in light of his family history. Dr. Poor states that "a CT scan would have definitively determined if Mr. Linsky had an active pulmonary embolism," however, significantly he does not address the expert opinion from Dr. Bardes that it was unlikely he had one at the time he was treated by Dr. Steinmetz five to ten days prior to June 23.

Dr. Poor further opines that a D-dimer blood test would have ascertained if Decedent "had a pulmonary embolism or was at risk of developing pulmonary embolism." Dr. Poor explains that high levels of D-dimer are indicative of increasing clotting activity in the blood stream, a cause of deep vein thrombosis and pulmonary emboli. Dr. Poor concludes that Dr. Steinmetz's failure to order a "diagnostically relevant" test to rule out pulmonary embolism was a breach of the standard of care. Dr. Poor opines that his contemporaneous pneumonia diagnosis does not rule out pulmonary embolism nor relieve Dr. Steinmetz of the obligation to eliminate pulmonary embolism from his differential diagnosis. For this reason, Dr. Poor opines that Dr. Steinmetz departed from the standard of care by failing to order a chest CT scan or D-dimer blood test to "definitively rule out pulmonary embolism" on the June 13, June 14, or June 18 visits.

The Court notes that Dr. Steinmetz was never questioned about this test during his deposition. This test was addressed in the deposition of co-defendant pulmonologist Dr. Kerstein, who stated his opinion that a D-dimer test would "not be helpful" for this patient because the results would be affected by his known pneumonia infection. Although this was part of the evidence in the record, Plaintiff's expert Dr. Poor does not comment on it.

On the issue of proximate causation, Plaintiff's expert opines that not ordering or performing a CT scan or D-dimer test deprived Decedent of the ability to diagnose and treat the condition that caused the pulmonary embolism, resulting in his death. Dr. Poor opines that Decedent's pulmonary embolism, discovered on June 23 in Jamaica Hospital, was only discovered because he lost consciousness behind the wheel of his car, and this syncopal episode was a side effect of untreated pulmonary emboli. He further opines that it was foreseeable that a failure to timely diagnose Decedent's pulmonary embolism would result in him losing consciousness.

Dr. Poor states it is "impossible to age a blood clot without an autopsy and no autopsy was performed," citing to the expert affirmation of co-defendant Dr. Kerstein. It is noted that Dr. Bardes, the expert for movant Dr. Steinmetz, relied on the Jamaica Hospital records which stated the pulmonary embolism occurred "approximately 48 hours before [Decedent's] death" on June 23, but Plaintiff's expert opines that there is no medical evidence as to exactly "when the fatal pulmonary embolism formed." Regardless of when it developed, Dr. Poor opines that "what Dr. Steinmetz failed to identify was Mr. Linsky's propensity to develop DVT . . . which can turn into pulmonary emboli." He opines that because Dr. Steinmetz failed to order a D-dimer test, "it is possible" Decedent already had a "small pulmonary emboli for a number of days" which went undetected and worsened over time.

Based on evaluation of the submissions, the Court finds that Plaintiff has not raised a genuine, triable issue of fact as to whether primary care physician Dr. Steinmetz departed from the standard of care on his three appointments with Decedent from June 13-18. The expert's opinion that Dr. Steinmetz failed to order additional diagnostic testing to "definitively rule out" a pulmonary embolism is conclusory, speculative, and reliant on hindsight reasoning.

Notably, Plaintiff's expert Dr. Poor concedes that the expedited tests ordered by Dr. Steinmetz (including the venous doppler test) only showed a "snapshot in time" and revealed he did not have a deep vein thrombosis at that time. This is in line with the defendant's position, as their expert argued Decedent had no signs of an active pulmonary embolism, his doppler study was negative for a blood clot in the legs (which would later migrate to his lungs), and therefore a CT scan was not warranted based on his June 13-18 symptoms.

Plaintiff's expert does not counter this opinion in any detail. He also opines generally that a CT scan is an appropriate diagnostic test to identify an "active" pulmonary embolism, but does not counter the opinion of Dr. Steinmetz's expert that based on his examination and Decedent's signs and symptoms, Decedent likely had no pulmonary emboli at the time he saw Dr. Steinmetz, and thus it would not be revealed by a CT scan. The expert then shifts to a vague discussion of Decedent's "propensity" for developing pulmonary emboli and opines that Dr. Steinmetz failed to order a D-dimer test to identify that he was abnormally forming or breaking down clots.

With respect to the D-dimer test, Plaintiff's expert states that this test would show Decedent's propensity or likelihood for developing clots, but does not explain or elaborate on this opinion. Even if the Court accepts this theory of liability, which was not expressly set forth in the bill of particulars, the expert's opinions on what the D-dimer test would have revealed are speculative and conclusory. Importantly, the expert fails to address the patient's positive bilateral pneumonia diagnosis, and they do not consider how this pneumococcal infection would affect the results of the D-dimer test. Co-defendant Dr. Kerstein's testimony, submitted into evidence, set forth the opinion that a D-dimer test would have been elevated by Decedent's pneumonia regardless of a DVT or pulmonary embolism, and therefore the test was not required by the standard of care in these circumstances.

The expert does not counter the opinions set forth by both the movant's expert and co-defendant Dr. Kerstein that all Decedent's signs and symptoms were consistent with resolving pneumonia and not consistent with pulmonary embolism. By failing to address the pneumonia infection, Plaintiff's expert opinion is insufficient to counter the movant's prima facie showing.

Furthermore, the expert does not address the fact that Dr. Steinmetz referred Decedent to a pulmonologist for further evaluation. As noted by the movants in reply, the expert never addresses Dr. Bardes's opinion that as a primary care physician, it was within the standard of care to refer the patient to a pulmonary specialist, and that Dr. Steinmetz properly relied on that specialist to confirm the pneumonia diagnosis and order further testing if necessary.

Notably, even if Plaintiff had raised an issue of fact as to the standard of care, Plaintiff raises no triable issues of fact to rebut the movant's prima facie showing on proximate causation. Plaintiff's expert opinions on the "possibility" that an asymptomatic pulmonary embolism was present on June 13-18 are speculative and not supported by any evidence in the record. The expert fails to rebut the movant's prima facie showing, through the expert opinion of Dr. Bardes, that the pulmonary emboli findings of his June 23 CT scan were not yet present and could not have been diagnosed during the time he was treated by Dr. Steinmetz.

Additionally, Dr. Kerstein's testimony that the D-dimer test would not have yielded useful information is relevant to the issue of proximate causation. Plaintiff's expert alludes to the "possibility," likelihood, or propensity of Decedent to develop clots, but does not offer any counter-opinion as to how these tests would have affected the patient's treatment or outcome. The expert does not elaborate on what the test would have revealed or what further treatment or prevention measures could have been implemented to stop an acute pulmonary embolism, especially in light of the fact that the elevated D-dimer result would likely be attributed to his pneumonia infection. As Dr. Kerstein testified, such a test would have shown elevated clotting factors from that infection, unrelated to the pulmonary embolism he ultimately sustained. Plaintiff's expert states that this was the "diagnostically relevant" test to rule out the possibility of pulmonary embolism, but does not address the fact the results would likely have been attributed to his existing infection rather than indicating any need for further treatment.

The foundation of Plaintiff's argument is that Dr. Steinmetz failed to use a CT scan or D-dimer test to rule out pulmonary embolism, but the expert's opinions on what those tests would have revealed at the time of his treatment with Dr. Steinmetz are conclusory, speculative, and fail to counter the movant's expert opinions. This is particularly true for the D-dimer blood test, in light of the testimony that this test is non-specific for pulmonary embolism, and that the same test would have yielded a positive result due to Decedent's pneumonia.

For these reasons, the Court finds that Plaintiff's expert opinions are conclusory, speculative, and fail to raise a genuine issue of fact sufficient to counter the movant's expert opinions. Dr. Steinmetz's motion for summary judgment on the medical malpractice claim is granted.

In support of the motion on behalf of Moshe Kerstein, M.D., submitted an expert affirmation from Ian Newmark, M.D., ("Dr. Newmark"), a licensed physician board certified in Pulmonary Disease.

Dr. Newmark opines that the single visit treatment rendered to Decedent by Dr. Kerstein, on June 19, 2019, complied with accepted medical practices for treating pneumonia, and further opines that Dr. Kerstein correctly did not suspect pulmonary embolism. Dr. Newmark notes that Decedent's June 13 chest x-ray had revealed pneumonia. Upon visiting Dr. Kerstein, Dr. Newmark opines that Decedent did not exhibit signs indicative of a pulmonary embolism such as shortness of breath, pain, cardiac arrhythmia, feeling faint, or coughing with blood.

Dr. Newmark concludes that the absence of these symptoms, along with Decedent's recent negative doppler study from June 13 and his normal oxygen saturation and heart rate, indicated that no further testing for pulmonary embolism was necessary. He opines that a normal heart rate and oxygen saturation "makes acute pulmonary embolism significantly less likely." He also opines that even if Decedent had a "silent" deep vein thrombosis developing at the time he was treated, no symptoms had manifested at the time he was seen by Dr. Kerstein. Therefore, he opines that Dr. Kerstein did not deviate from the standard of care by continuing Decedent's treatment for pneumonia, scheduling a follow-up chest x-ray in two weeks, and not ordering further testing or consultation to rule out pulmonary embolism.

Dr. Newmark specifically opines that no further tests were necessary because Decedent "undoubtedly had pneumonia" based on his chest x-ray, and his symptoms including his prior shortness of breath were consistent with that diagnosis and had improved with antibiotics.

Regarding proximate causation, Dr. Newmark explains that there is no way to "age" a clot without an autopsy, which was not done for Decedent. Thus, although a saddle pulmonary embolism was discovered in the CT scan performed on June 23, 2019, four days after his visit to Dr. Kerstein, the expert opines it is unknown exactly when it formed. However, based on his clinical presentation, Dr. Newmark opines that his "subsequent course" was not attributable to any alleged failure of Dr. Kerstein, because there were no signs of pulmonary embolism from Decedent's history, presenting complaints, prior radiological studies, or physical examinations.

Dr. Newmark notes that following Decedent's syncopal episode on June 23, he was brought to the hospital with shortness of breath, tachycardia, elevated white blood cell count, and elevated troponin level, all of which prompted an emergent CT scan revealing "bilateral saddle pulmonary emboli with thrombus extending into the pulmonary arteries." Dr. Newmark opines that none of these symptoms were present when he was treated by Dr. Kerstein and therefore the pulmonary embolism itself was an acute, subsequent development.

Based on these submissions, the Court finds that Dr. Kerstein has established prima facie entitlement to summary judgment on the medical malpractice claim, setting forth detailed expert opinions that the pulmonologist properly treated Decedent for ongoing pneumonia, and that he had no clinical signs or symptoms at that time of a developing or untreated pulmonary embolism which would have necessitated further testing at that time.

Dr. Newark also establishes prima facie that no alleged departures from Dr. Kerstein on June 19 were a proximate cause of his subsequent pulmonary embolism or syncopal episode while driving, and that treatment was not a substantial factor in Decedent's worsened injuries. The expert sets forth that based on his based on his signs and symptoms, a deep vein thrombosis or pulmonary embolism was unlikely to be present or diagnosable on June 19.

In opposition to Defendant's Dr. Kerstein's motion, Plaintiff submits the aforementioned expert affirmation from Dr. Poor, a licensed physician board certified in pulmonary disease, critical care medicine, and internal medicine.

Dr. Poor opines generally that Dr. Kerstein failed to properly evaluate Decedent on June 19, 2019 and failed to diagnose pulmonary emboli. Dr. Poor opines that Dr. Kerstein had an obligation to investigate pulmonary embolism due to Decedent's "recent shortness of breath" on June 13, and the fact that his twin brother had a pulmonary embolism. Of note, it is not reflected in Dr. Kerstein's records whether he was informed of the medical history of Decedent's brother.

As with Dr. Steinmetz, Dr. Poor specifically opines that Dr. Kerstein "failed to order any test that could definitively rule out pulmonary embolism, such as a chest CT scan or D-dimer blood test." He states that a CT scan "would have definitively determined if Mr. Linsky had an active pulmonary embolism," but this is the extent of any opinions regarding the standard of care as to ordering a CT scan.

Dr. Poor also opines that a D-dimer blood test "would have indicated if [Decedent] had recent clotting activity, even if he did not have an active pulmonary embolism." In the opposition papers, Plaintiff's expert Dr. Poor does not address the comments of Dr. Kerstein that such a test was unwarranted because even a positive result would not have raised any further suspicion of a pulmonary embolism, due to the patient's existing pneumonia infection.

In addressing Dr. Newmark's opinion that Decedent had no symptoms of deep vein thrombosis or pulmonary embolism when he saw Dr. Kerstein, Dr Poor acknowledges that Decedent's venous doppler study was negative and he denied any shortness of breath on June 19. However, Dr. Poor also states that it was "clinically relevant" that Decedent reported shortness of breath to his primary care physician on June 13, six days earlier, as noted in Dr. Kerstein's medical record. Dr. Poor opines that Dr. Kerstein breached the standard of care by failing to investigate Decedent's recent history of shortness of breath, which he opines should have prompted a D-dimer test. Dr. Poor opines that the failure to perform this test denied the Decedent the chance to discover and treat his "propensity" or possibility for developing pulmonary emboli.

As to causation, Dr. Poor opines without detail that earlier diagnosis and treatment would have prevented Decedent's condition from deteriorating and would have improved his prognosis and chances of survival. Dr. Poor also opines that the failure to investigate a possible pulmonary embolism led to the syncopal episode that injured all the passengers in Decedent's vehicle, including his wife, which the expert states was a "foreseeable" symptom and consequence of failing to diagnose pulmonary embolism.

Based on evaluation of these submissions, the Court finds Plaintiff has not raised a triable issue of fact as to Dr. Kerstein. As discussed above, Plaintiff's expert wholly fails to address the movant's expert opinion that Decedent's clinical presentation was consistent with pneumonia and inconsistent with any signs or symptoms of pulmonary embolism. The expert repeatedly emphasizes Decedent's "shortness of breath" symptom from June 13 as a reason to order additional tests, but fails to acknowledge that the expert's opinion that this was a symptom of his existing pneumonia infection, and it had resolved with antibiotics at the time of the June 19 presentation to Dr. Kerstein.

Further, the expert fails to address the effect of Decedent's pneumonia diagnosis on the very tests they opine should have been performed. As the movant argues in reply, Plaintiff's expert does not counter the testimony of Dr. Kerstein that a D-dimer test would have provided "no useful information" in preventing a pulmonary embolism or syncopal episode in Decedent's case. As discussed above in reference to Dr. Steinmetz's motion, Dr. Kerstein testified that Decedent's bilaterial pneumonia alone would have likely led to a positive result on that test, regardless of the presence or "likelihood" of a developing clot. He testified that a D-dimer "would not have been helpful . . . because he had pneumonia, he had an infection," which typically elevates D-dimer levels. Plaintiff's expert acknowledges that the test "would have indicated if Mr. Linsky had any recent clotting activity, even if he did not have an active pulmonary embolism" (emphasis added), yet does not address Dr. Kerstein's testimony that this was the very reason it was not a diagnostically relevant test in his position. Therefore, the expert fails to raise a genuine issue of fact that Dr. Kerstein departed from the standard of care.

On proximate causation, Plaintiff's expert also provides no detail as to how identifying the patient's "possibility" or propensity for clotting would have altered his diagnosis or course of treatment, particularly since the clotting would have been attributable to his known pneumonia infection, rather than deep vein thrombosis (which was ruled out by the doppler study) or pulmonary embolism. The Court finds Plaintiff's expert opinions are conclusory, speculative, based on hindsight, and fail to raise a genuine issue of fact as to whether the alleged failure to order additional tests proximately caused Decedent's injuries.

For these reasons, Dr. Kerstein's motion for summary judgment on the medical malpractice claim is granted.

As the underlying medical malpractice claims have been dismissed, the remaining cause of action for wrongful death is also dismissed against Dr. Steinmetz, Ira M. Steinmetz, M.D. P.C., and Dr. Kerstein.

Regarding the personal injury claims of Decedent's spouse, Plaintiff alleges that the failure to timely diagnose and treat Decedent's pulmonary embolism directly led to the June 23, 2019 motor vehicle accident, as Decedent fainted and lost control of his vehicle while driving. His wife was among the passengers injured in the collision. She alleges that the physicians' alleged failures proximately caused her injuries in the accident.

In the part of Dr. Steinmetz's motion seeking to dismiss the wife's cause of action pursuant to CPLR 3211 (a) (7), the movant argues that she has no "enforceable right of recovery" on these grounds (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 [2017] [internal quotation marks and citations omitted]). Generally, a physician owes a duty of care to their patient, and that duty is "limited to those medical functions undertaken by the physician and relied on by the patient" (Abruzzi v Maller, 221 AD3d 753, 765 [2d Dept 2023] [internal quotation marks and citations omitted].)

Dr. Kerstein similarly argues in their moving papers that the pulmonologist owed no duty of care to the patient's wife. Additionally, they argue that Dr. Kerstein's alleged departures from the standard of care were not a proximate cause of the injuries stemming from the motor vehicle accident, as this was not a "contemplated or foreseeable" consequence of his actions (Rodriguez v Hernandez, 37 AD3d 809, 810 [2d Dept 2007]).

As the Court of Appeals has observed, "We have been reluctant to expand a doctor's duty of care to a patient to encompass nonpatients. A critical concern underlying this reluctance is the danger that a recognition of a duty would render doctors liable to a prohibitive number of possible plaintiffs." (McNulty v City of New York, 100 NY2d 227, 232 [2003]). Courts have recognized only narrow situations where a physician's duty of care may extend to the patient's immediate family members or the general public. For example, the Court of Appeals found that a physician's duty could be expanded by "the existence of a special relationship . . . where the physician knew or should have known that the nonpatient was relying upon the physician's exercise of due care" (Tenuto v Lederle Labs., Div. of Am. Cyanamid Co., 90 NY2d 606, 612 [1997]). This may include knowingly placing family members at risk of "incurring an infectious or highly contagious disease from the patient," or other circumstances where "the service performed on behalf of the patient necessarily implicates protection of household members or other identified persons foreseeably at risk because of a relationship with the patient" (id. at 612-613 [emphasis added]). The appellate court applied this reasoning to extend the duty of care to an infant patient's parents in Tenuto, who were placed at risk of contracting polio by the physician's administration of a live vaccine to the infant.

However, the Court of Appeals has emphasized the limited nature of that, noting that the special relationship was based on "the parents' reliance on the doctor, both directly and indirectly, given their status as the infant patient's primary caretakers," in contrast to the friend of an adult patient who contracted an infectious disease (McNulty v City of New York, 100 NY2d at 233).

In a case similar to the instant action, involving medical treatment and a subsequent motor vehicle accident, the Court found that the defendants had no duty to the general public to "prevent [the patient] from operating a motor vehicle off the premises, or to warn her of any danger of her so doing" (Purdy v Pub. Adm'r of Westchester County, 72 NY2d 1, 6 [1988]). In that action, the driver had been a voluntary resident of the defendant facility and was treated by the defendant physician following a stroke. Her medical condition "left her susceptible to fainting spells and blackouts," which resulted in a motor vehicle accident (id. at 7). The Court of Appeals found there was no breach of any duty to the plaintiff who was injured in the accident in these circumstances, holding that "the imposition of a duty on defendants would have to arise out of some special relationship between defendants and [the resident] such as would require them to control [the resident's] conduct for the benefit of plaintiff" (id. at 8 [emphasis added]). The court further held that the defendants had no "duty to the community at large" or "legal obligation" to warn her not to drive a vehicle, noting that her impaired driving ability was not "attributable to any medication prescribed to her."

When the patient's impaired driving is directly attributable to the physician's treatment (e.g., prescribed medications), the Court of Appeals has expanded a physician's duty of care. This was the basis of the court's holding in Davis v S. Nassau Communities Hosp. (26 NY3d 563 [2015]). In Davis, the patient was discharged from a hospital on opioid medication, and it was alleged that the physicians failed to adequately warn her "that such medication either impaired or could impair her ability to safely operate an automobile" (id. at 569). On the same day, she left the hospital and was involved in a motor vehicle accident. The Court of Appeals held that "where a medical provider has administered to a patient medication that impairs or could impair the patient's ability to safely operate an automobile, the medical provider has a duty to third parties to warn the patient of that danger" (id. at 570). The Court further clarified that the nature of the duty was "ensuring that when [the patient] left the Hospital, she was properly warned about the effects of the medication administered to her" and the effect of their holding was to "extend the scope of persons to whom the physician may be responsible for failing to fulfill that responsibility" (id. at 579).

Here, notwithstanding the Court's finding that Plaintiff did not raise an issue of fact to withstand summary judgment in their favor, the Court finds that Decedent's wife has no viable cause of action against Dr. Steinmetz and Dr. Kerstein for her personal injuries. There is no case law cited by Plaintiff to support expanding the scope of a physician's duty to relatives who may be physically injured in an accident resulting from an undiagnosed condition. Plaintiff relies primarily on Davis, but the factual background and the court's narrow holding in that case are clearly distinguishable from this action. The accident in Davis was not caused by a failure to timely diagnose the driver's medical condition, but the fact she was prescribed medication and discharged without warning of its side effects. In contrast, Decedent's loss of consciousness while operating a vehicle was not the result of any medication administered or procedure performed by the defendants in this case. Neither Dr. Steinmetz nor Dr. Kerstein had the legal duty invoked by Davis to protect the general public by warning him of the direct risks of their treatment and care.

Similarly, unlike in Tenuto, where the physician administered a vaccine which carried risks of infection to the infant's caretakers, Decedent's wife was not a person placed "foreseeably at risk" by the treatment at issue. It is not disputed that the motor vehicle accident was caused by a sudden onset of fainting/syncope which were not present at the time he was treated by Dr. Steinmetz or Dr. Kerstein. The physicians had even less awareness of his potential driving impairment than the residential facility in Purdy, where the patient had a known stroke which made her susceptible to blackouts. On the evidence submitted, it is clear that Decedent's condition was either non-existent or asymptomatic prior to June 23, and there is no evidence from which a reasonable person could conclude that the physicians "knew or should have known that the nonpatient [spouse] was relying upon the physician's exercise of due care" in relation to her claimed personal injuries (c.f. Tenuto at 612).

The Court also agrees with Dr. Kerstein's argument that the intervening event was too independent and far removed from Defendants' actions to be a foreseeable consequence of the alleged failure to perform additional testing to rule out pulmonary embolism.

"Where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury . . . liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence. If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct, it may well be a superseding act which breaks the causal nexus" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980])

Here, Plaintiff relies on a speculative chain of events where the physicians knew or should have known that failing to appreciate the patient's "possible" asymptomatic or claimed developing pulmonary embolism would lead to his loss of consciousness, and motor vehicle accident six days later. The alleged risk to Decedent's wife and the injuries she sustained were not a normal or foreseeable consequence of their alleged failure to diagnose and treat his pulmonary condition.

In sum, the Court finds that even accepting arguendo that Defendants departed from the standard of care in treating Decedent, they owed no duty of care to Decedent's wife to warn or prevent him from operating a vehicle, nor were their alleged actions in failing to diagnose his condition a foreseeable, proximate cause of her injuries in the accident. The part of the Defendants' motions seeking summary judgment and dismissal of her personal injury claims is therefore granted.

As this action is dismissed in its entirety, the branch of Dr. Steinmetz's motion seeking to amend their answer to assert additional affirmative defenses is denied as moot.

It is hereby:

ORDERED that the part of the motion of Dr. Steinmetz, Ira M. Steinmetz, M.D. P.C. (Seq. No. 4), and Dr. Kerstein (Seq. No. 5) seeking an extension of time to move for summary judgment, is granted; and it is further

ORDERED that the motion of Dr. Steinmetz and Ira M. Steinmetz, M.D. P.C. (Seq. No. 4) seeking summary judgment in their favor is granted; and it is further

ORDERED that the motion of Dr. Kerstein (Seq. No. 5) seeking summary judgment in his favor is granted; and it is further

ORDERED that the part of the Defendants' motions (Seq. No. 4 & 5) seeking dismissal of Plaintiff Abby Linsky's personal injury claims arising from the motor vehicle accident is granted; and it is further

ORDERED that the part of the Dr. Steinmetz and Ira M. Steinmetz, M.D. P.C.'s motion (Seq. No. 4) seeking leave to amend their Answer is denied as moot; and it is further

ORDERED that as Plaintiffs' claims were previously discontinued against defendant Bedford Medical Family Health Center, the action shall be marked dismissed in its entirety.

The Clerk shall enter judgment in favor of IRA STEINMETZ, M.D., IRA M. STEINMETZ, M.D. P.C. and MOSHE KERSTEIN, M.D.

This constitutes the decision and order of the Court.

ENTER.

Hon. Consuelo Mallafre Melendez

J.S.C.

FOOTNOTES

1.   The Court notes that the date set for the completion of discovery by the Central Compliance Part would have been after the existing deadline for filing the summary judgment motion, February 5, 2026.

Consuelo Mallafre Melendez, J.