In this medical malpractice action, plaintiffs move for leave to renew and reargue this Court's prior decision, after a hearing held on January 17, 2007, which denied their oral application for a determination as to whether the decision of their medical expert, on the eve of trial, to decline to testify on behalf of the infant-plaintiff was the result of defendants' tampering with the witness. By way of background, it is undisputed that there is a professional relationship of sorts between plaintiffs' intended expert, pediatric orthopedist Dr. Wallace Lehman, the Chief Emeritus of the Pediatric Orthopedic Department at the Hospital for Joint Diseases, and the medical experts allegedly retained by defendants on the eve of trial, i.e., (1) Dr. David Feldman, the Chief of the Pediatric Orthopedic Surgery Department at the Hospital for Joint Diseases, and (2) Dr. Allan Strongwater, a pediatric orthopedic surgeon who works under Dr. Feldman at the Hospital for Joint Diseases. Notably, both Drs. Feldman and Strongwater are former students of Dr. Lehman. Additionally, Dr. Feldman is the infant-plaintiff's treating physician.

In view of the above facts, an issue was raised by plaintiffs' counsel on January 17, 2007 as to whether or not Dr. Lehman's "sudden change of heart" regarding his willingness to testify on plaintiffs' behalf was attributable to coercion on the part of Drs. Feldman and Strongwater, his colleagues at the Hospital for Joint Diseases, and/or improper discussions between these physicians relative to the merits of plaintiffs' case. At this point, after hearing Dr. Lehman's testimony on the issue, this Court declined plaintiffs' request to direct Drs. Feldman and Strongwater to testify regarding their contact with Dr. Lehman, or to preclude these experts from testifying on defendants' behalf at any trial on the issue of liability. It is this determination which plaintiffs seek to overturn.

In seeking leave to reargue, plaintiffs maintain that the testimony of Drs. Feldman and Strongwater was critical in determining whether or not Dr. Lehman was coerced on the eve of trial to decline to testify on plaintiffs' behalf and/or was placed in fear that his testimony could jeopardize his position as Emeritus Chief of the Pediatric [*2]Orthopedic Surgery Department at the Hospital for Joint Diseases. More specifically, plaintiffs contend that the Court's failure to question Drs. Feldman and Strongwater under oath severely prejudiced plaintiffs' ability to prove their claim of witness intimidation, and that the

Court's refusal to exclude these witnesses from testifying at the trial has resulted in significant prejudice to the prosecution of plaintiffs' case.

In addition, plaintiffs maintain that the only reasonable conclusion that can be drawn from Dr. Lehman's "unexpected change of opinion" is that he had discussed his anticipated testimony with Drs. Feldman and Strongwater, and they have submitted in partial support, copies of certain e-mails purportedly received from Dr. Lehman on January 9, 2007 and January 10, 2007 which they failed to offer at the hearing. According to plaintiffs, these e-mails are contradictory of certain aspects of Dr. Lehman's testimony. It is plaintiffs' claim that this purported evidence demonstrates that the respective experts engaged in improper, pre-trial discussions about plaintiffs' case. Moreover, plaintiffs claim that since Drs. Lehman, Feldman and Strongwater are colleagues in the Pediatric Orthopedic Surgery Department of the Hospital for Joint Diseases, they can be expected to extend some manner of fellowship towards each other. This factor, combined with the implied improper discussion of plaintiffs' case, is said by plaintiffs to raise an overwhelming appearance of impropriety which warrants the preclusion of all three witnesses from testifying at trial on the issue of liability.

Finally, with respect to the infant plaintiff's treating physician (Dr. Feldman), plaintiffs maintain that he should have been precluded from testifying on the basis of the untimeliness of defendants' CPLR 3101(d) response identifying him as an expert witness, and that the Court further erred in August of 2005 when it directed plaintiffs to issue a HIPAA-compliant authorization allowing defense counsel to communicate with Dr. Feldman ex-parte. Plaintiffs note that this since this practice is now prohibited in the Second Department, the expert opinion that defense counsel obtained in this manner from Dr. Feldman should be precluded at trial.

In further support of their renewed request that Dr. Feldman be precluded from testifying at trial, plaintiffs also submit a transcript of a telephone conversation on March 14, 2007 between Josephine Fox (the infant's mother) and Dr. Feldman, wherein the latter definitively states that he is not a defense expert, and that he will not testify on defendants' behalf unless he is subpoenaed. Based on this telephone conversation, plaintiffs claim that Dr. Feldman is clearly uncomfortable with giving testimony potentially adverse to his patient, and that the untimely CPLR 3101(d) response identifying Dr. Feldman as a defense expert on the eve of trial was likely bogus.

It is well established that a motion for leave to reargue is addressed to the sound discretion of the court and affords the moving party an opportunity to show that the court overlooked or misapprehended the facts or the law or for some other reason mistakenly arrived at its earlier decision (see CPLR 2221[d][2]; Boboyev v Gomez, 304 AD2d 600; Doirio v City of New York, 202 AD2d 625). It is not to be used, however, as the means by which an unsuccessful party is permitted to argue again the very issues previously decided (see Pro Brokerage v Home Ins. Co., 99 AD2d 971), nor as a vehicle to provide an unsuccessful party with an opportunity to present new or different arguments from those originally asserted (see Gellert & Rodner v Gem Community Mgt., 20 AD3d 388; Amato v Lord & Taylor, 10 AD3d 374, 375).

In the instant matter, movants' papers fail to convince this Court that it misapprehended the existing law or misconstrued Dr. Lehman's unequivocal denial of anycoercion or conversations between himself and Drs. Strongwater or Feldman about plaintiffs' case. The Court is not inclined to alter its finding that Dr. Lehman was a [*3]credible witness, nor is plaintiffs' reformulation of the very same arguments rejected at the earlier hearing a valid reason to permit reargument. Nor will the Court consider in support of reargument "matters of fact not offered on the prior motion" (CPLR 2221[d][2]; see Amato v Lord & Taylor, 10 AD3d at 375), or arguments different from those previously advanced (see Pryor v Commonwealth Land Tit. Ins. Co., 17 AD3d 434, 435-436). In this regard, to whatever extent plaintiffs may seek to rely upon the purportedly contradictory e-mails attributed to Dr. Lehman as a basis for drawing his credibility into question, they have yet to provide this Court with any explanation for their failure to produce these e-mails at the January 17th hearing, at a time when any apparent contradictions could have been addressed by the witness. In any event, the conclusions that plaintiffs seek to draw from these alleged inconsistencies are highly speculative and conjectural. In view of all of the above, plaintiffs have failed to make the required showing in support of its request for leave to reargue (see Boboyev v Gomez, 304 AD2d at 601; Pro Brokerage v Home Ins. Co., 99 AD2d at 971).

As for plaintiffs' request for leave to renew, it is well established that "[a] motion to renew is properly granted where new information arises which existed at the time the prior motion was made and is relevant to the moving party's claim, but which was unavailable or unknown to that party at the time of the original motion" (Lee v Ogden Allied Maint. Corp., 226 AD2d 226, 227; see Azzopardi v American Blower Corp., 192 AD2d 453, 453-454; Foley v Roche, 68 AD2d 558, 568). Clearly, these elements have not been met. Plaintiffs at bar do not claim, and have not demonstrated, that the e-mails from Dr. Lehman were "unknown" or "unavailable" at the time of the hearing on January 17, 2007 (see Lee v Ogden Allied Maintenance Corp.,, 226 AD2d at 226; Foley v Roche, 68 AD2d 558, 568). In addition, the purported telephone conversation with Dr. Feldman is of little relevance on the key issue of witness tampering. However, a motion for leave to renew may also be based on an intervening change in the law and, here, a post-hearing determination by the Second Department in Arons v Jutkowitz (37 AD3d 94, 97) suggests that an order of preclusion should have been granted with regard to any ex parte opinion obtained by defense counsel from Dr. Feldman, as well as his potential testimony on defendants' behalf on the issue of liability.

Turning to defendants' motion for leave to make a second summary judgment motion, it is pertinent to note that their prior motion for summary judgment was denied as untimely, rendering any second application even less timely (see Brill v City of New York, 2 NY3d 648). In any event, defendants assert as "good cause" the discovery of new evidence, i.e., the testimony obtained from plaintiffs' former expert, Dr. Wallace Lehman, on January 17, 2007. Thus, defendants opine that Dr. Lehman's alleged change in position regarding the applicable standard of care at the time of treatment serves to eliminate any triable issues of fact. The Court disagrees.

In opposition to defendants' motion, plaintiffs have submitted a redacted Affirmation of Medical Merit from their newly-retained expert in orthopedic surgery wherein he/she sets forth the alleged departures and deviations from good and accepted standards of medical care and practice attributed to these defendants, as well as a causal connection between the stated departures and the infant plaintiff's injuries. Although defendants argue that the expert's purported affirmation is facially defective and devoid of any evidentiary value for (1) failing to set forth the expert's qualifications, credentials and affiliations, (2) lacking the ordinary indicia of proper execution, and (3) failing to be accompanied by an unredacted version of the affirmation for in camera review, this Court is inclined to overlook these technical defects as the unintended consequences of the haste necessitated by the withdrawal of plaintiffs' medical expert on the eve of trial, and the resulting need to replace him on very short notice. This Court has no doubt that a properly executed, unredacted affirmation exists, and that plaintiffs will make same available to the Court, post-haste. It is well settled that a motion for [*4]summary judgment cannot be granted on the basis of a conflict in the opinions of the respective experts (see Feinberg v Feit, 23 AD3d 517, 519; Shields v Baktidy, 11 AD3d 671, 672).

Accordingly, it is the determination of this Court that plaintiffs' motion for leave to reargue is denied; that their motion for leave to renew is granted; that upon renewal, their request for an order of preclusion barring the potential use by defendants at trial of the expert opinion and testimony of Dr. David Feldman on the issue of liability is granted; that the balance of plaintiffs' renewal motion is denied; and that

defendants' application for leave to file a second motion for summary judgment is also denied.

The foregoing constitutes the Decision and Order of the Court.

Law Clerk to notify all parties of this Decision/Order.

Settle Order.

Dated: Oct. 2, 2007/s/_________________________________

Hon. Thomas P. Aliotta, J.S.C.

Barton Barton & Plotkin LLP

Att: Sheri L. Plotkin, Esq.

420 Lexington Avenue

New York, NY 10170

Martin Clearwater & Bell LLP

Att: Michael C. Jacobson, Esq.

220 East 42 Street

New York, Ny 10017