Meirowitz v. Pizzaro

2026 NY Slip Op 30925(U)

• Court: New York Supreme Court, New York County
• Decided: March 12, 2026
• Docket: Index No. 100721/2025
• Status: Unpublished
• Author: John J. Kelley

Opinion

Meirowitz v Pizzaro 2026 NY Slip Op 30925(U) March 12, 2026 Supreme Court, New York County Docket Number: Index No. 100721/2025 Judge: John J. Kelley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.1007212025.NEW_YORK.001.LBLX038_TO.html[03/20/2026 3:45:57 PM] INDEX NO. 100721/2025 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/12/2026

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JOHN J. KELLEY PART 56M Justice ---------------------------------------------------------------------------------X INDEX NO. 100721/2025 SPENCER MEIROWITZ, MOTION DATE 11/13/2025 Plaintiff, MOTION SEQ. NO. 001 -v- RODRIGO PIZZARO, M.D., DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 were read on this motion to/for DISMISS .

In this action to recover damages for medical malpractice, fraudulent misrepresentation,

and intentional infliction of emotional distress, the defendant moves pursuant to CPLR

3211(a)(7) to dismiss the complaint for failure to state a cause of action. The plaintiff opposes

the motion. The motion is granted, and the complaint is dismissed.

The plaintiff alleged in his complaint that the defendant psychiatrist was appointed by the

Supreme Court, New York County, as a court evaluator in a now-disposed action for a divorce,

for the purpose of advising and reporting to the court with respect to child custody issues

involving the plaintiff. He contended that the defendant committed malpractice by improperly

diagnosing him with certain psychiatric conditions, and by going beyond the scope of his judicial

appointment. More specifically, the plaintiff asserted that the defendant “abused his role by

going far beyond the scope of the court order” appointing him, and went beyond the American

Psychiatric Association (APA) Child Custody Evaluation Guidelines, Association of Family and

Conciliation Courts (AFCC) Model Standards, and the rules, guidelines, and standard accepted

principles set forth in the Diagnostic and Statistical Manual (DSM)-5 and DSM-5-TR. The

plaintiff further averred that the defendant “exploited” the plaintiff’s status as an indigent and

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disabled individual, and provided the divorce court with “speculative testimony based on

outdated, incomplete, and contradictory evaluations.”

Additionally, the plaintiff asserted in his complaint that the defendant

“was appointed and mandated to follow the Appointment Order as a neutral, to apply accepted forensic methodology, to contact and document appropriate collateral sources (i.e., a fair and balanced set reflecting multiple perspectives) and to base conclusions on current, contemporaneously gathered data in this pleading, words such as ‘unethical,’ ‘biased,’ and similar descriptors are used to mean that Defendant exceeded the scope of that court-ordered role and departed from established professional standards and guidelines (including the APA child-custody evaluation guidelines and AFCC model standards). The sworn testimony and record establish those extra-scope departures, including drawing conclusions without adequate data, relying on outdated or incomplete information, and answering hypotheticals untethered to the evaluation record. These departures reflect a deliberate disregard of the Appointment Order and are the misconduct/mal/non/misfeasance/bias shown in the document.”

When assessing the adequacy of a pleading in the context of a motion to dismiss under

CPLR 3211(a)(7), the court’s role is “to determine whether [the] pleadings state a cause of

action” (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152 [2002]). To

determine whether a claim adequately states a cause of action, the court must “liberally

construe” it, accept the facts alleged in it as true, accord it “the benefit of every possible

favorable inference” (id. at 152; see Romanello v Intesa Sanpaolo, S.p.A., 22 NY3d 881, 884

[2013]; Simkin v Blank, 19 NY3d 46, 52 [2012]), and determine only whether the facts, as

alleged, fit within any cognizable legal theory (see Taxi Tours, Inc. v Go New York Tours, Inc.,

41 NY3d 991, 993 [2024]; Hurrell-Harring v State of New York, 15 NY3d 8, 20 [2010]; Leon v

Martinez, 84 NY2d 83, 87 [1994]; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short

Hills, Inc., 10 AD3d 267, 270-271 [1st Dept 2004]; CPLR 3026). “The motion must be denied if

from the pleading's four corners factual allegations are discerned which taken together manifest

any cause of action cognizable at law” (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98

NY2d at 152 [internal quotation marks omitted]; see Leon v Martinez, 84 NY2d at 87-88;

Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

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“‘No action to recover damages for medical malpractice arises absent a physician-

patient relationship’” (Schrumpf v Meinhard, 57 AD3d 510, 511 [2d Dept 2008], quoting

Savarese v Allstate Ins. Co., 287 AD2d 492, 493 [2d Dept 2001]). “A physician-patient

relationship is created when professional services are rendered and accepted for purposes of

medical or surgical treatment” (Thomas v Hermoso, 110 AD3d 984, 985 [2d Dept 2013]). Thus,

for example, the relationship between a doctor performing a medical examination on behalf of

an insurance company for the purpose of evaluating a personal injury claim, and the person

whom he or she is examining, may fairly be called a “‘limited physician-patient relationship,’”

which may only give rise to a medical malpractice cause of action where the physician

performed the examination in a manner that directly caused physical harm to the examinee

(Bazakos v Lewis, 12 NY3d 631, 635 [2009], citing Dyer v Trachtman, 470 Mich 45, 49-50, 679

NW2d 311, 314-315 [2004]) or where the physician “affirmatively advised the patient as to a

course of treatment” (Johnson v North Shore Univ. Hosp., 28 Misc 3d 127[A], 2010 NY Slip Op

51180[U], *2, 2010 NY Misc LEXIS 2855, *3 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists, Jul.

7, 2010]; see Badolato v Rosenberg, 67 AD3d 937, 938 [2d Dept 2009]). Specifically, “[a]n

implied physician-patient relationship can arise when a physician gives advice to a patient, even

if the advice is communicated through another health care professional” (Raptis-Smith v St.

Joseph's Med. Ctr., 302 AD2d 246, 247 [1st Dept 2003]; see Tom v Sundaresan, 107 AD3d

479, 479 [1st Dept 2013]). Stated another way, such a physician only enters into a true

physician-patient relationship with an examinee where the services performed by that physician

“bear a substantial relationship to the rendition of medical treatment to a particular patient”

(Rabinovich v Maimonides Med. Ctr., 179 AD3d 88, 94 [2d Dept 2019]).

“While the issue of whether a physician owes a duty of care is a question of law, whether

a physician-patient relationship exists is generally an issue of fact” (Tom v Sundaresan, 107

AD3d at 479). The plaintiff has alleged no facts in his complaint even suggesting that the

defendant provided medical care and treatment to him, or provided him with any medical or 100721/2025 MEIROWITZ, SPENCER vs. PIZZARO MD, RODRIGO Page 3 of 7 Motion No. 001

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psychiatric advice; rather, the plaintiff asserted only that the defendant improperly evaluated and

diagnosed him on behalf of the divorce court itself, and conceded that the purpose of the

defendant’s examination was so that the divorce court could properly determine appropriate

child custody and visitation plans for inclusion in the judgment of divorce. To the extent that he

claims that the defendant overstepped the authority delegated to him by the divorce court’s

order of appointment, the proper remedy would have been to appeal from the adverse

provisions of the judgment of divorce, and argue that those provisions were erroneous, based

on the court’s consideration of an inappropriate evaluation, diagnosis, and report. Hence, this

court concludes both that the defendant did not owe the plaintiff a duty properly to evaluate and

diagnose him in the first instance, and that the plaintiff alleged no facts that would support any

contention that he had entered into a physician-patient relationship with the defendant. The

complaint thus fails to state a cause of action (see Santiago v. KMart Corp., 158 AD3d 596, 596

[1st Dept 2018] [complaint fails to state cause of action where defendant owes no duty of care

to the plaintiff]; Wheeler v Kron, NY Slip Op 30530[U], *2, 2011 NY Misc LEXIS 942, *1 [Sup Ct,

N.Y. County, Feb. 16, 2011] [complaint fails to state cause of action where plaintiff does not

enter into a physician-patient relationship with defendant]).

The court further agrees with the defendant that a physician appointed by a court to

evaluate the physical or mental health of a party is protected by the doctrine of quasi-judicial

immunity, which “provides absolute immunity from subsequent damages liability for all persons--

-governmental or otherwise---who were integral parts of the judicial process” (Briscoe v LaHue,

460 US 325, 335 [1983]).

Not only those individuals who serve in a judicial capacity, but those who are delegated

judicial or “quasi-judicial” functions, are immune from civil suits based on any actions taken in

their official capacities, including court-appointed evaluators (see Mosher-Simons v County of

Allegany, 99 NY2d 214, 220 [2002] [“the antecedent fact-gathering process necessary for the

court to reach (a) placement decision” in a Family Court proceeding “must be cloaked with 100721/2025 MEIROWITZ, SPENCER vs. PIZZARO MD, RODRIGO Page 4 of 7 Motion No. 001

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judicial immunity”; hence, county caseworker upon whose report Family Court relied in

determining a child’s placement is immune from liability in an action alleging negligent

placement]; see Davila v Orange County, 229 AD3d 500, 502 [2d Dept 2024]). Thus, “a

psychiatrist appointed by the court as a neutral forensic evaluator with the consent of the

parties’ attorneys and the children’s Law Guardian in an underlying custody proceeding in

Family Court has judicial immunity from suit for malpractice regarding the work he performed”

(Bridget M v Billick, 36 AD3d 489, 490 [1st Dept 2007]; see Tripi v Alabiso, 189 AD3d 2133,

2134 [4th Dept 2020] [defendant “has judicial immunity from suit regarding the work he

performed as a court-appointed forensic psychiatric expert in connection with . . . plaintiff's child

custody litigation”]; Ashmore v Lewis, 112 AD3d 508, 508-509 [1st Dept 2013] [documentary

evidence established conclusively that judicial immunity precluded plaintiff from recovering

damages for negligence or malpractice against psychologist appointed by the court as a neutral

forensic evaluator in an underlying Supreme Court custody proceeding]; Young v Campbell, 87

AD3d 692, 694 [2d Dept 2011] [dismissing negligence/malpractice action against psychologists

and social workers who had been appointed to aid courts in divorce and neglect proceedings

because “judicial immunity precludes the plaintiff from recovering damages for negligence or

malpractice against them”]; Hom v Reubins, 268 AD2d 461, 461 [2d Dept 2000] [same as Tripi];

Finkelstein v Bodek, 131 AD2d 337, 338 [1st Dept 1987] [“Included within those groups of

persons who enjoy immunity for statements uttered in a judicial proceeding are court-appointed

experts who are ordered to conduct psychiatric examinations”]). Consequently, the medical

malpractice cause of action also must be dismissed on the ground that the defendant is

protected by quasi-judicial immunity.

To successfully plead a cause of action sounding in common-law fraudulent

misrepresentation, a plaintiff must assert that the defendant mispresented a material fact to the

plaintiff, that the representation was known by the defendant to be false, that the person making

the representation intended for the plaintiff to rely on it when the representation was made, that 100721/2025 MEIROWITZ, SPENCER vs. PIZZARO MD, RODRIGO Page 5 of 7 Motion No. 001

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the plaintiff justifiably relied on the representation, and that injury resulted from that reliance

(see Braddock v Braddock, 60 AD3d 84, 86 [1st Dept 2009]; see also Golobe v Mielnicki, 44

NY3d 86, 92 [2025]; Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330, 348 [1999]). Most of

the defendant’s statements that the plaintiff claims were false were not made to him, but to the

divorce court. Even accepting the plaintiff’s contention that the defendant made some false

statements to him, the plaintiff made no factual allegations that the defendant knew that the

representations were false or that the defendant intended for the plaintiff detrimentally to rely

upon those representations, let alone that the plaintiff justifiably relied on those statements (see

Riggs v Brooklyn Hosp. Ctr., 207 AD3d 405, 406 [1st Dept 2022]), or that the plaintiff was

somehow injured by those representations. Hence, that branch of the defendant’s motion which

was to dismiss the fraudulent misrepresentation cause of action must be granted.

The tort of intentional infliction of emotional distress “has four elements: (i) extreme and

outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing,

severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv)

severe emotional distress” (Howell v New York Post Co., 81 NY2d 115, 121 [1993]). The

plaintiff alleged no conduct on the defendant’s behalf that would fall within this definition, since

the only factual allegations that the plaintiff made was that the defendant misdiagnosed him,

performed an improper evaluation, and made a report to the justice presiding over the divorce

action that adversely affected the plaintiff’s interests in child custody and visitation. That cause

of action also must be dismissed as duplicative of other causes of action. The claim here “fall[s]

within the ambit of other traditional tort liability” (Fleischer v NYP Holdings, Inc., 104 AD3d 536,

538 [1st Dept 2013]; see Fischer v Maloney, 43 NY2d 553, 557-558 [1978]; Matthaus v Hadjedj,

148 AD3d 425, 426 [1st Dept 2017]; Rodgers v City of New York, 106 AD3d 1068, 1070 [2d

Dept 2013]; Leonard v Reinhardt, 20 AD3d 510, 510 [2d Dept 2005]; Stuart v Porcello, 193

AD2d 311, 315 [3d Dept 1993]), specifically, the medical malpractice cause of action (see

Fleischer v Zhang, 228 AD3d 484, 485 [1st Dept 2024]). In this respect, the plaintiff did not 100721/2025 MEIROWITZ, SPENCER vs. PIZZARO MD, RODRIGO Page 6 of 7 Motion No. 001

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allege any facts independent of those alleged in connection with the dismissed medical

malpractice cause of action, or allege distinct damages (see Matthaus v Hadjedj, 148 AD3d at

426; Perez v Violence Intervention Program, 116 AD3d 601, 602 [1st Dept 2014]; Fleischer v

NYP Holdings, 104 AD3d at 538).

The plaintiff’s remaining contentions are without merit, and the court discerns no need

for it to consider or review otherwise confidential documents proffered by the plaintiff, let alone

the sur-reply that the plaintiff submitted without prior court authorization (see 22 NYCRR 202.8-

c; Zyskowski v Chelsea-Warren Corp., 238 AD3d 498, 499 [1st Dept 2025]).

Accordingly, it is,

ORDERED that the defendant’s motion to dismiss the complaint is granted, and the

complaint is dismissed; and it is further,

ORDERED that the Clerk of the court shall enter judgment dismissing the complaint.

This constitutes the Decision and Order of the court.

3/12/2026 $SIG$ DATE JOHN J. KELLEY, J.S.C.

CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

□ X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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