The following papers were considered in connection with the defendants' separate motions to stay certain depositions:

Morgantini's order to show cause (Seq. No. 1), affirmation,

Mid Hudson's order to show cause (Seq. No. 2), affirmation, exhibit8-10

Panos' affirmation in support, exhibit11-12

Hudson Valley Center's cross motion (Seq. No. 3), affirmation13-14

Panos' cross motion (Seq. No. 4), affirmation15-16

Plaintiff's affirmation in opposition to Morgantini and Mid Hudson,

Plaintiff's affirmation in opposition to Hudson Valley Center and Panos48-49

Morgantini's reply affirmation50

Mid Hudson's reply affirmation, exhibit51-52

Hudson Valley Center's reply affirmation53

The defendant Robert Morgantini, R.F.N.A. (hereinafter Morgantini), moves by order to show cause to stay the taking of his deposition in connection with the above-captioned action and all other actions presently pending before this Court involving the medical practice of the defendant Spyros Panos, M.D (hereinafter Dr. Panos). The defendant Mid Hudson Medical Group, P.C. (hereinafter Mid Hudson) separately moves by order to show cause to stay all defendants' [*2]depositions. The defendant Hudson Valley Center at Saint Francis, LLC (hereinafter Hudson Valley Center) cross-moves to stay its own deposition. Dr. Panos cross-moves to stay his own deposition. The plaintiff opposes the motions.

In determining these motions, the Court must balance the prejudice to the plaintiffs of any delay caused by a stay against the prejudice to the defendants' ability to defend themselves caused by Morgantini's anticipated silence. While the equities might have previously weighed in favor of staying the defendants' depositions, now, considering the passage of time, the status of the plaintiffs' depositions and other discovery, and the culmination of the criminal proceedings against Dr. Panos, the equities have tipped in favor of the plaintiffs' rights to prosecute their case and conduct the defendants' depositions. Nevertheless, the Court acknowledges that the parties will need some time to plan for and create a deposition schedule for the defendants in this complex set of cases, while they continue to depose the remaining plaintiffs and commence Dr. Panos' deposition. Accordingly, for administrative purposes, and for the reasons indicated herein, the motions made by Morgantini, Mid Hudson, and Hudson Valley Center are granted to the limited extent of staying their depositions until Monday, March 3, 2015, at which time they will begin producing their witnesses in accordance with this order. However, Dr. Panos' cross motion to stay his deposition is denied.

Presently pending before this Court are over 150 actions sounding in medical malpractice and other legal theories against Dr. Panos, his former employer Mid Hudson, various medical facilities, and other related entities.^[FN1] Generally speaking, these actions arise out of surgeries allegedly performed by Dr. Panos on each of the separate plaintiffs. The defendant Morgantini, a nurse who allegedly assisted Panos in a number of surgeries, is named as a defendant in some, but not all, of these pending actions.

The plaintiffs allege, among other things, that Dr. Panos performed surgeries that were not medically indicated, that he failed to render proper treatment and care that was medically necessary, and that he performed "sham" surgeries. With respect to nurse Morgantini, the plaintiffs allege, among other things, that he assisted in certain surgeries, that he knew or should have known that the surgeries were not properly performed, and that he should have reported Dr. Panos' activities (see e.g. Plaintiff's Exhibit CC [Dancy Bill of Particulars]). The plaintiffs allege that Mid Hudson, as Dr. Panos' employer, is vicariously liable for his malpractice, and was negligent in failing to identify that Dr. Panos was not treating patients in conformity with accepted medical practice (see Plaintiffs' Exhibit CC [Dancy Complaint]). The plaintiffs further allege that other medical facilities, such as Hudson Valley Center, were negligent in failing to identify Dr. Panos' conduct and put a stop to it by revoking his privileges or taking other appropriate action.

The subject surgeries allegedly took place over a number of years, with allegations of medical malpractice dating back to 2007, nearly eight years ago, in some cases.^[FN2] In this action, the plaintiff Jemar Dancy (hereinafter Dancy) seeks damages stemming from an August 3, 2010 shoulder surgery. Dancy filed his complaint on January 29, 2013.

Discovery has proceeded with the plaintiffs' depositions continuing. However, to date, no defendant has been deposed due to various stays imposed while criminal investigations into various defendants' conduct were pending. On March 19, 2012, in light of a federal criminal investigation into the actions of Dr. Panos, this Court (Lubell, J.) stayed defendants' depositions until June 25, 2012 (see Plaintiffs' Exhibit F at 61). That stay was subsequently extended to January 7, 2013 (see Plaintiffs' Exhibit G at 27). The stay was reinstated on April 12, 2013 (see Order dated April 12, 2013 [Lubell, J.]).

While the stays were in place, the criminal inquiry into Dr. Panos' conduct culminated with the United States Attorney's Office filing a criminal information against him charging one count of Health Care Fraud (see Plaintiff's Exhibit AA). On November 1, 2013, Dr. Panos pleaded guilty to Health Care Fraud with his sentencing scheduled for March 7, 2014.

Accordingly, since there was "no reason to believe that any related criminal dispositions or indictments [were] forthcoming," the Court set March 7, 2014 as the expiration date of the stay (see Order dated November 21, 2013 [Lubell, J.]). Therefore, on March 7, 2014, the stay was lifted.

The pending motions

Now, Morgantini, Mid Hudson, Hudson Valley Center, and Dr. Panos separately move to reinstate the stay.

In support of his application to stay the taking of his own deposition, Morgantini submits the affirmation of his criminal attorney, who affirms that he has spoken with the United States Attorney's office and has been informed that the investigation into surgeries performed by Dr. Panos is still ongoing and, "notwithstanding Dr. Panos' guilty plea and sentencing . . . Mr. Morgantini's status as a subject/target of said criminal investigation remains unchanged" (Morgantini Exhibit D). Morgantini argues that under these circumstances, were he to be deposed in these civil actions, upon the advice of his criminal counsel, he may opt to invoke his Fifth Amendment right against self-incrimination to avoid answering questions. He contends that he would be prejudiced if his application for a stay is denied and his deposition was to go forward, as he should not be forced to choose between invoking his Fifth Amendment right and defending himself in these civil actions.

Mid Hudson moves for a stay of all defendants' depositions arguing, among other things, that it will be prejudiced by Morgantini's invocation of his Fifth Amendment rights because he is an [*3]important witness to many of the alleged surgeries.^[FN3]

Hudson Valley Center cross-moves for a stay of its deposition, arguing that if Morgantini's deposition is stayed due to the likelihood that he will invoke his Fifth Amendment rights, it will be unable to defend itself against claims that it is vicariously liable for Morgantini's actions.

Dr. Panos cross-moves to stay his own deposition noting that, while he pleaded guilty to medical billing fraud, he continues to maintain that he is innocent of any acts of malpractice. Therefore, he contends that Morgantini's silence will prejudice his ability to defend against these claims.

The plaintiff opposes the imposition of any stay. The plaintiff contends that any federal investigation into billing fraud should not be a bar to discovery, since their claims are distinct from the claims related to medical billing. The plaintiff argues that Morgantini's invocation of the Fifth Amendment should not serve to stay his own deposition, and that he will be prejudiced if discovery is further delayed given that depositions have already been stayed by previous orders for some time. Further, the plaintiff contends that Mid Hudson has not articulated how it would be prejudiced should Morgantini invoke the Fifth Amendment at his deposition and, therefore, Mid Hudson has failed to establish a basis for staying its own deposition.

Applicable law

"It is well settled that a court has broad discretion to grant a stay in order to avoid the risk of inconsistent adjudications, application of proof and potential waste of judicial resources" (Zonghetti v Jeromack, 150 AD2d 561, 563 [2d Dept 1989]). "A compelling factor is a situation where a defendant will invoke his or her constitutional right against self incrimination" (Britt v International Bus Servs., Inc., 255 AD2d 143, 144 [1st Dept 1998]). In particular, the defendants' interest in the stay must be balanced against the prejudice to the plaintiff of the delay in prosecuting its action (see DeSiervi v Liverzani, 136 AD2d 527, 528 [2d Dept 1988]).

The privilege against self-incrimination afforded by the Fifth Amendment of the United States Constitution is applicable in civil actions and a witness, whether or not he or she is a party, may assert the privilege whenever the witness "reasonably fears prosecution for a crime" (Weinstein-Korn-Miller, NY Civ Prac ¶ 4501.11; see State of New York v Carey Resources, Inc., 97 AD2d 508, 509 [2d Dept 1983] ["The privilege may only be asserted when the witness has a reasonable cause [*4]to apprehend danger from a direct answer"]).

"That the witness may invoke the privilege against self incrimination is not a basis for precluding civil discovery and a blanket refusal to answer cannot, absent unique circumstances . . . be sustained" (State of New York v Carey Resources, Inc., 97 AD2d at 509; cf. De Siervi v Liverzani, 136 AD2d 527 [2d Dept 1988] [holding that the trial court properly stayed the civil action pending completion of the criminal prosecution]).

"[T]hat a litigant might be forced to elect between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination'" (Access Capital v DeCicco, 302 AD2d 48, 51 [1st Dept 2002], quoting Williams v Florida, 399 US 78, 84 [1970]; see Stuart v Tomasino, 148 AD2d 370, 373 [1st Dept 1989] ["The Fifth Amendment privilege is not waived until a defendant voluntarily makes a statement that is actually incriminatory and evidences a willingness to forego his constitutional privilege" (internal quotation marks omitted)]). "However, while courts have recognized the difficulty faced by defendants in choosing between presenting evidence in their own behalf and asserting their Fifth Amendment rights, a court need not permit a defendant to avoid this difficulty by staying a civil action until a pending criminal prosecution has been terminated'" (Matter of Astor, 62 AD3d 867, 869 [2d Dept 2009], quoting Steinbrecher v Wapnick, 24 NY2d 354, 365 [1969]).

Morgantini's motion

For the purposes of deciding the motion, the Court will assume that Morgantini has a genuine concern of being forced to choose between making potentially incriminating statements and invoking the Fifth Amendment. However, such fears are not a basis to forestall his deposition altogether. The Court notes that years have now passed since the surgeries at issue took place, with allegations of malpractice dating back to 2007 in some cases. Indeed, memories fade over time. Some of the plaintiffs are advanced in age and deserve to have their cases heard in a reasonable period of time [*5]under the circumstances, and may, in some cases, be entitled to trial preferences.^[FN4] Given that the plaintiffs are being deposed at a rate of three per week, and the deposition of Dr. Panos is expected to begin shortly, the Court will stay Morgantini's deposition, for administrative purposes, until Monday, March 3, 2015, at which time the depositions of Morgantini and the remaining defendants shall begin regardless of the resolution of the criminal inquiry.

Further, the motions by Mid Hudson and Hudson Valley Center to stay their depositions and/or the depositions of all defendants are granted to the limited extent of staying their depositions to Monday March 3, 2015, for administrative purposes, at which time they will begin.

The rationale applicable to a request for a stay of an action sought by parties not seeking to invoke the Fifth Amendment is somewhat different than when the stay is sought by party invoking the privilege:

Here, the Court finds that Mid Hudson and Hudson Valley Center have failed to establish that they would be irreparably harmed if their depositions were to go forward (cf. Zonghetti v Jeromack, 150 AD2d 561 [2d Dept 1989] [a movant seeking a stay of a civil action pending completion of a criminal action has the burden to establish "(1) a likelihood of ultimate success on the merits, (2) irreparable injury absent the granting of a preliminary injunction, and (3) that a balancing of the equities favors their position"]). Moreover, given the prejudice to the plaintiffs due to the passage of time, a balancing of the equities weighs against any extended stay.

However, to the extent that the depositions of the plaintiffs are continuing and the deposition of Dr. Panos is expected to begin shortly, the Court will stay Mid Hudson and Hudson Valley Center's depositions until Monday, March 3, 2015, at which time they will begin.

Several parties have cited to Britt v International Bus Servs., Inc. (255 AD2d 143 [1st Dept 1998]), where the First Department held that it was error to deny the defendant bus company a stay of the trial where its codefendant, the bus driver who allegedly operated the bus involved in the accident, clearly intended to invoke his right against self-incrimination. The court stated: "Defendants have demonstrated that with [the driver's] critical and necessary testimony in the civil action they would be unable to defend themselves" (id. at 144).

However, Britt is readily distinguishable from the case at bar. In Britt, the defendants sought a stay of the trial. By contrast, here, Mid Hudson, Hudson Valley Center, and Dr. Panos merely seek a stay of their depositions. While the Court agrees that Morgantini's silence may impact the other defendants' ultimate ability to present a defense at trial, these defendants have not established that they would be irreparably harmed by producing witnesses for depositions.

Moreover, the determination of the present motions is without prejudice to any motion at the completion of discovery to stay any trial upon a proper showing. To mitigate against any potential harm, if Morgantini does in fact assert his privilege against self-incrimination, the Court will entertain requests to conduct a further deposition of him should the criminal investigation into his conduct be resolved.

Dr. Panos' cross motion

Finally, Dr. Panos' cross motion to stay his own deposition is denied. The Court is not aware of any other criminal proceedings pending against Dr. Panos. Moreover, access to Dr. Panos is presently extremely limited given his incarceration in Pennsylvania. The penitentiary has only permitted the deposition of Dr. Panos to take place twice per month. Under these circumstances, no stay of Dr. Panos' deposition is warranted.

The parties are directed to proceed with defendants' depositions as follows:

3. The depositions of any remaining plaintiffs shall continue as scheduled.

Based upon the foregoing, it is hereby,

ORDERED that the motions of the defendants Robert Morgantini, Mid Hudson Medical Group, P.C., are Hudson Valley Center at Saint Francis, LLC are granted to the limited extent of staying their depositions until Monday, March 3, 2015; and it is further

ORDERED that the cross motion of the defendant Spyros Panos, M.D. is denied; and it is further

ORDERED that the parties shall proceed to schedule defendants' depositions in accordance with the schedule set forth above; and it is further

ORDERED that all other relief requested and not decided herein is denied.

This constitutes the decision and order of the Court.

November 5, 2014_____________________________________HON. Francesca E. Connolly, J.S.C.