The following papers were considered in connection with Motion Sequence 1 by defendant Mid Hudson Medical Group, P.C. for an Order: (a) pursuant to CPLR 2221(e) granting moving defendant leave to renew the motion for a stay of defendant depositions under CPLR 2201 resulting in the Order of January 11, 2013 denying defendants' motion, to the extent that the Court did not consider Dr. Panos' June 25, 2012 examination before trial testimony; (2) pursuant to CPLR 2221(d) granting moving defendant leave to reargue the motion for a stay of defendant depositions under CPLR 2201 resulting in the Order of January 11, 2013; and, (3) for such other and further relief as this Court may deem just and proper, and Motion Sequence 2 by defendant Vassar Brothers Hospital for an Order pursuant to CPLR 2221(1) granting leave to reargue the motion for a stay of defendant depositions under CPLR 2201; (2) upon reargument, vacating the January 11, 2013 Decision and Order and reinstating the stay of depositions of any current and previous employees of Vassar Brothers Hospital; and (3) directing such other and further relief as this Honorable Court deems just and proper.

MOTION SEQUENCE 1

PAPERSNUMBERED

ORDER TO SHOW CAUSE/AFFIRMATION/EXHIBITS A-C1

AFFIRMATION IN OPPOSITION2

AFFIRMATION IN SUPPORT3

AFFIRMATION IN OPPOSITION/EXHIBITS A-D4

AFFIRMATION IN SUPPORT5

AFFIRMATION IN OPPOSITION6 [*2]

AFFIRMATION IN OPPOSITION7

MOTION SEQUENCE 2

PAPERSNUMBERED

NOTICE OF MOTION TO REARGUE8

AFFIDAVIT IN SUPPORT/EXHIBITS A-C9

AFFIRMATION IN SUPPORT10

REPLY AFFIRMATION/EXHIBITS A-C11

AFFIRMATION IN OPPOSITION12

REPLY AFFIRMATION/EXHIBITS A-C13

AFFIRMATION IN OPPOSITION14

The instant motions are made in connection with this Court's January 7, 2013, on-the-record determination to vacate the various stays imposed by the Court with respect to the taking of defendants' depositions and the depositions of the employees of same (the "Stay"), SO ORDERED on January 11, 2013.

A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221[d][2]; see Matter of American Alternative Ins. Corp. v. Pelszynski, 85 AD3d 1157, 1158). "Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some [other] reason mistakenly arrived at its earlier decision" (Mudgett v. Long Is. R.R., 81 AD3d 614, 614 [internal quotation marks omitted]; see E.W. Howell Co., Inc. v. S.A.F. La Sala Corp., 36 AD3d 653, 654).

(Grimm v Bailey, ____, AD3d ____, 2013 NY Slip Op 02220 [2d Dept Apr. 3, 2013]).

The motion to reargue is granted.

The Court is satisfied and the record clearly reflects that, upon vacating the Stay, the Court placed undue emphasis on the fact that the Stay had earlier been granted in the absence of an indictment and that the Court was loath to continue same absent precedent. In fact, the status of the Federal Grand Jury investigation and whether or not any of the defendants had by then been indicted was expressly made the subject of the Court's inquiry of January 7, 2013. Having then been advised that an indictment had not yet issued or been rendered academic, the Court vacated the stay as follows:

Based on the totality of the circumstances involved in the matter and the manner in which these cases are moving I see no harm, no foul, if this stay is no longer in place. The defendants will be deposed when they get to them, but I'm not going to be in a position creating new law where there is no indictment in place, and I just grant a stay ad infinitum [Emphasis Added]. [*3]

(Transcript, January 7, 2013, p. 25, lines 15-22).

Now, upon reargument, the Court rules as follows.

While a stay of a civil action is most appropriate where a party to a civil case is under indictment for the same conduct (Trustees of Plumbers and Pipefitters Nat. Pension Fund v. Transworld Mechanical, Inc., 886 F Supp 1134, 1137 [SDNY 1995]), the pendency of criminal proceedings is not a sini qua non to the granting of a stay. Likewise, the fact that one is under an indictment does not compel such relief (Stuart v. Tomasino, 148 AD2d 370, 539 N.Y.S.2d 327 [1st Dept 1989]). In the end, it is a matter of the Court's sound discretion (Britt v. Intl. Bus Services, Inc., 255 AD2d 143, 144 [1st Dept 1998]).

Absent a pending criminal action, a court should determine whether there is a good faith assertion and well-founded belief that there is an imminent likelihood that the movant will be subject to criminal proceeding in the very near future (Parker v. Dawson, 06-CV-6191 JFB WDW, 2007 WL 2462677 [EDNY Aug. 27, 2007]) and with respect to same, that movant, another party or material witness will invoke his or her Fifth Amendment rights in the civil action in order to protect his or her constitutionally protected right against self-incrimination in the prospective criminal action, and whether the result of same will prejudice movant in the defense of the civil action in a manner which outweighs the prejudice to plaintiff.

Given the on-going posture of the Federal investigation, the Court continues to harbor no doubt that the civil defendants will invoke their Fifth Amendment rights during the deposition stage of discovery and/or will be prejudiced by the invocation of same by co-defendants or employees or agents thereof, and that the resulting prejudice to the defendants in being unable to defend themselves in the civil action outweighs the prejudice to which plaintiffs are exposed by the Stay.

With that being said, and for the reasons earlier articulated by the Court in connection with the initial granting of the Stay with respect to defendant Panos and the extensions of same as to all defendants and employees of same as continued by the Court from time to time, and after due and deliberate consideration of the papers submitted herewith and in connection with the earlier submissions and upon consideration of the oral argument held herein, the Court denies the applications to vacate the Stay heretofore imposed.

The absence of any definitive action by the Federal Grand Jury will be taken into account upon any future application. Now, at the very least, the Court is persuaded and there does not appear to be [*4]any dispute that issues of fraud and the like in the civil actions are complex and, as may be gleaned from counsels' representations as to, among other things, the numerous records sought by Grand Jury subpoena, same can be said with respect to the related Federal criminal investigation.

In the absence of an indictment, there is no way for the Court to discern the extent to which issues in the criminal investigation overlap those in these civil matters. As such, the Court cannot now rule upon the propriety of any Fifth Amendment assertion vis-à-vis the criminal action as defined by the charges in an indictment (see Sterling Nat. Bank v. A-1 Hotels International, Inc., 175 F. Supp 2d 573, 577 [SDNY 2001] ). That may very well change if and when the Grand Jury hands up an indictment. As such, were the Court to continue the Stay post-indictment, the stage will be set for an examination and narrowing of issues about which the defendants can reasonably be said to be concerned.

Given the procession of yet new cases against Dr. Panos and the various defendants, the progress already made in the numerous already pending matters, and (from the various representations made by counsel,) the progress made in the underlying Grand Jury investigation, the Court will exercise its discretion in favor of one's invocation of the Fifth Amendment right against self-incrimination which has been described as a "compelling factor" (see Zonghetti v. Jeromack, 150 AD2d 561 [2nd Dept 1989]; Britt v. International Bus Services, 255 AD2d 143 [1st Dept 1998]) or "more important consideration" (DeSiervi v. Liverzani, 136 AD2d 527, 528 [2d Dept 1988]) in applications such as this (but see Fortress Credit Opportunities I LP v. Netschi, 59 AD3d 250 [1st Dept 2009][assertion of privilege against self-incrimination insufficient basis for precluding discovery] citing Access Capital v. DeCicco, 302 AD2d 48, 52-53 [1st Dept 2002][assertion of privilege in civil proceedings does not relieve defendant of obligation to put in a defense]).

In addition to the various reasons spread on the record and otherwise previously articulated by the Court in connection with the granting and continuation of the Stay, the Court reiterates the fact that the Stay only applies to the taking of depositions of defendants, their current employees and, by way of clarification, their former employees to the extent represented by counsel to a former employer or by an attorney who had joined in the application for a Stay. In order to establish a procedure to resolve or head off issues as to whether or not any past employees are represented by counsel to a defendant/former employer or otherwise, all deposition subpoenas served on a former employee shall be served on notice to defendants to allow defense counsel the opportunity to come forward with proof of their representation of that individual, if such is in issue.

In light of the foregoing, the motion to renew is denied as academic. [*5]

For the reasons herein stated and for those earlier articulated by the Court in connection with the initial granting of the Stay with respect to defendant Panos and the extensions of same as to all defendants and their present and past employees (as now clarified), and after due and deliberate consideration of the papers submitted herewith and in connection with the earlier submissions and upon consideration of the oral argument held herein, it is hereby

ORDERED, that the Court hereby vacates its January 11, 2013, vacatur of the Stay without prejudice to reapplication to vacate or modify the stay should there be change in circumstances such as would warrant such relief; and, it is further

ORDERED, that, all deposition subpoenas served upon any former employee shall be served as hereinabove directed.

The foregoing constitutes the Opinion, Decision, and Order of the Court.

Dated: Carmel, New York

April 12 , 2013

S/ __________________________________

HON. LEWIS J. LUBELL, J.S.C.