Civil Court of the City of New York, Kings County, September 26, 2018

Morrison & Wagner, LLP, New York City, for plaintiff.

Votto & Albee, PLLC, Staten Island, for defendants.

This action involves a motor vehicle collision that occurred on March 1, 2011, at the intersection of Bushwick Avenue and Kossuth Place, in the County of Kings, City and State of New York. The vehicle that was owned and operated by the plaintiff was hit in the side rear by a vehicle owned by Ameri Line, Inc., and operated by its employee, Francis Ikachi Okolie. The plaintiff claims to have sustained serious personal injury as a result of the negligent operation of said motor vehicle by the defendant(s) and commenced this action for recovery of damages.

The summons and complaint were served and filed; issue was joined by service of an answer, and after discovery, a note of issue was filed for trial. It appears that the plaintiff moved for summary judgment on the issue of liability, and on or about October 23, 2014, the Supreme Court determined that the defendant was negligent as a matter of law. (It should be noted that neither side has provided the court with a copy of the Supreme Court order; however, the defendants do not contest this claim made by the plaintiff in the instant motion.) After several appearances in the Supreme Court, this matter was transferred to the Civil Court pursuant to CPLR 325 (d). As shown in the court record, the original court date was November 24, 2015, and adjourned to the following dates: March 17, 2016, July 25, 2016, December 19, 2016, January 17, 2017, February 5, 2018, and April 19, 2018.

The record further states that on April 5, 2018, the plaintiff moved by notice of motion returnable on April 19, 2018, to preclude the defendants from introducing into evidence the consent order issued by the New York State Board for Professional Medical Conduct (hereinafter referred to as BPMC){**63 Misc 3d at 173} against Dr. Mehran Manouel and any evidence of any disciplinary proceeding against Dr. Mehran Manouel, the orthopedic surgeon who allegedly performed arthroscopic surgery on the right knee of the plaintiff allegedly as a result of the injuries sustained in the automobile accident.

In general, as described in Public Health Law § 230 et seq., the Office of Professional Medical Conduct (hereinafter referred to as OPMC) is part of BPMC. It investigates suspected cases of professional misconduct and seeks to issue appropriate disciplinary actions. In many instances, medical professionals that are investigated by the OPMC are granted a right to a full and fair hearing of the accusations brought against them. At the end of such hearings, OPMC imposes disciplinary action, if warranted, based on the evidence. The penalties range from revocation of the medical license, suspension, reprimand and/or fines. Additionally, the OPMC monitors compliance with the disciplinary actions and/or orders.

In this case, in lieu of a full evidentiary hearing, Dr. Mehran Manouel entered into a consent order, to be approved by the BPMC, that provided, in pertinent part, as follows:

"I understand that the New York State Board for Professional Medical Conduct (board) has charged me with one or more specifications of professional misconduct, as set forth in a Statement of Charges, marked as Exhibit 'A', attached to and part of this Consent Agreement. Exhibit A reflects pending charges in a hearing that has commenced. I assert that I cannot successfully defend against at least one of the acts of misconduct alleged, in full satisfaction of the charges against me, and agree to the following penalty . . . a) . . . probation for a period of 36 months . . . ; b) . . . 'a fine in the amount of $5,000.00 . . . '; 'continue to be registered with the NYS Education Department . . . and other license requirements under state law.'

"Upon adoption of the consent order by the Board, the consent order and all attached exhibits shall be public documents; may be posted on the Department's website, . . . reported to the National Practitioner Dat[a] Bank and the Federation of State Medical Boards, and any other entities that the Director of OPMC shall deem appropriate."

Lastly,

"[i]n consideration of the value to me of the Board's{**63 Misc 3d at 174} adoption of this consent agreement, allowing me to resolve this matter without the various risks and burdens of a hearing on the merits, I knowingly waive my right to contest the Consent Order for which I apply, whether administratively or judicially, I agree to be bound by the Consent Order and I ask that the Board adopt this Consent Agreement."

In summary, the statement of charges provides, in relevant part, as follows: Patients A, B, C, D, and E, all males involved in automobile accidents, allegedly underwent "inappropriate" arthroscopy surgery on their knees, shoulders, and rotator cuffs "without appropriate preoperative workup and without adequate conservative treatment," and Dr. Manouel "failed to appropriate[ly] follow-up post-operatively," "falsely report[ed] and billed for purported surgical procedures with the intent to deceive and failed to maintain records that accurately reflected the evaluation and treatment of the patient." As equally relevant, the other charges assert negligence, incompetence, engagement in fraudulent practices by false reporting, unwarranted test/treatment, and failure to maintain records. Finally, exhibit B sets forth the terms of probation. (No evidence has been presented by either party that the Board adopted the consent order; however, the plaintiff affirms that "the Consent Agreement was accepted by both the State Board and Dr. Manouel.")

In his motion, the plaintiff argues that the consent order is not an admission of guilt on any particular charge; "there is no indication as to which charge or charges Dr. Manouel could not successfully defend" and accordingly,

"there is no basis to introduce Dr. Manouel's record as the record is devoid of any particular activity that Dr. Man[ou]el engaged in which could arguably be deemed admissible to the jury. This is especially true when Dr. Man[ou]el will not be appearing at trial so that there will be no direct or cross examination testimony [of] him." (Affirmation of Stuart Wagner, Esq. ¶ 10 [plaintiff's papers do not contain numbered paragraphs, so the court counted the number of each paragraph].)

The plaintiff relies on Yarborough v Cattani (43 Misc 3d 785 [2014]) and Cipriano v Ho (29 Misc 3d 952 [2010]).

In opposition, the defendants contend that the OPMC found that Dr. Manouel committed negligence, was incompetent, committed{**63 Misc 3d at 175} fraud, filed false reports, and performed unwarranted surgery. The defendants further contend that "Dr. Manouel was found to have engaged in this conduct on or about the time that he performed the procedure on the plaintiff." (Affirmation of Christopher Albee, Esq. ¶ 4.)

Counsel also claims that "[t]he plaintiff is attempting to deprive the defense of the opportunity to cross examine the witness, by calling a non-treating physician, because of the surgeon's history of committing fraud, negligence and incompetence; the Defendant asserts that the Plaintiff does not want the jury to hear this damaging evidence."

Defendants also argue that it would be unfair for this evidence to be excluded because the jury should be apprised of the findings of the OPMC since "the surgery may not have even been performed." (Affirmation of Christopher Albee, Esq. ¶ 5.) Defendants conclude that the surgery on the plaintiff was unnecessary; and the plaintiff was not injured in the accident based on the analysis of the biomechanical engineer and the defendants' expert doctors.

Further defendants rely on Baragano v Vaynshelbaum (2005 NY Slip Op 30465[U] [2005]) and Public Health Law § 10 (2), which states that the investigations performed here against Dr. Manouel are "presumptive evidence of the facts so stated therein, and shall be received as such in all courts and places." The defendants conclude that "plaintiff's proposed expert will be incompetent to testify concerning plaintiff'[s] surgery as the surgeon who performed the procedure, according to the finding of the Department of Health and OPMC, did not perform procedures he claims to have performed." (Affirmation of Christopher Albee, Esq. ¶ 15.)

In reply, the plaintiff relies on well settled case law which states that it is improper to prove that a person did an act on a particular occasion by showing that he did similar acts on a different, unrelated occasion. Plaintiff also relies on the general proposition that the courts have uniformly held that disciplinary actions against a doctor are inadmissible unless the individual doctor is actually taking the witness stand himself, thereby putting his own credibility and trustworthiness at issue. Plaintiff also claims that the defendants' counsel "wishes to use Man[ou]el's OPMC records to create an inference that if Dr. Man[ou]el committed bad acts or misconduct earlier in his medical practice, that this constitutes evidence that he committed similar bad acts in this occasion" (affirmation of Stuart Wagner, Esq. ¶ 7).

{**63 Misc 3d at 176}The plaintiff further asserts that he will call a board-certified surgeon who reviewed the MRI films, treatment and other records, and based on his own medical examination of the plaintiff will opine that the injury and treatment were causally related to the accident. The plaintiff contends that he is under no obligation to designate the treating physician as a trial witness and can without reservation call an expert witness to testify about this surgery and the damages claims in the underlying case.

Plaintiff lastly contends that it is reversible error for this court to allow the OPMC consent order in evidence "without the treating physician having first placed his credibility into issue as a live trial witness" (affirmation of Stuart Wagner, Esq. ¶ 9). In short, the plaintiff contends that the use of the consent order would unduly prejudice the jury insomuch that the jury might infer that the surgeon was negligent in the instant case simply because of the unfavorable findings in an unrelated medical disciplinary proceeding.

Public Health Law § 10 provides, in pertinent part, as follows:

"1. The actions, proceedings, authority, and orders of the Department in enforcing the provisions of the public health law and the sanitary code applying them to specific cases shall at all times be regarded as in their nature judicial, and shall be treated as prima facie just and legal.

"2. The written reports of state and local health officers, inspectors, investigators, nurses and other representatives of state and local health officers on questions of fact pertaining to, concerning or arising under and in connection with complaints, alleged violations, investigations, proceedings, actions, authority and orders, related to the enforcement of this chapter, . . . shall be presumptive evidence of the facts so stated therein, and shall be received as such in all courts and places."

As a general rule of evidence, applicable to both criminal and civil cases, it is improper to prove that a person did an action on a particular occasion by showing that he did a similar act on a different, unrelated occasion. (Jerome Prince, Richardson on Evidence §§ 170, 184 [10th ed 1973].) Certain exceptions to this general rule have been recognized where the evidence offered{**63 Misc 3d at 177} has some relevancy to the issues presented other than mere similarity. Evidence of other similar acts will be admitted into evidence if those acts tend to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan; or (5) identity (People v Molineux, 168 NY 264, 293 [1901]; accord Proposed NY Code of Evidence § 404 [b] [1992]); the main distinction between the exceptions is found in the purpose for which the evidence of collateral acts is admitted under each category.

A review of the relevant cases is significant and sets the groundwork for the more recent decision of the Court of Appeals that set new precedent in this area.

In Stevenson v Goomar (148 AD2d 217 [1989]), the Appellate Division, Third Department, held that, in the doctor's appeal from the Supreme Court order that granted the plaintiff's motion for summary judgment on the issue of liability in a medical malpractice case, a party to a civil action that seeks to invoke his rights to a trial by jury and did not initiate or otherwise affirmatively seek to litigate the claim at the administrative level may not rely on the otherwise preclusive effect that is customarily granted to an administrative determination. In its rationale, the Court distinguished the facts in that case from Ryan v New York Tel. Co. (62 NY2d 494 [1984]) where the general principles of collateral estoppel were applied to administrative determinations. In Ryan, the operative facts were determined at an administrative hearing in which the defendant doctor actively sought to defend his medical license. However, by way of comparison, in Stevenson (148 AD2d at 221), where the doctor was a party to a civil action who sought to invoke his right to a trial by jury and did not have a fair opportunity to do so at the administrative level, the Court held that

"fundamental fairness and the policy considerations referred to by the Court of Appeals in Staatsburg Water Co. v. Staatsburg Fire Dist. (72 NY2d 147, 153, supra) and Gilberg v. Barbieri (53 NY2d 285, 292-294, supra) require that preclusive effect not be given to the [*5]administrative determination. To conclude otherwise would result in the substantial erosion of rights far more fundamental and important than the concepts of finality and judicial economy served by the doctrine of collateral estoppel. Accordingly, plaintiff's motion should be{**63 Misc 3d at 178} denied."

It is important to note that based on the plaintiff's testimony at a hearing pursuant to Public Health Law § 230, the doctor was found guilty of professional misconduct and his license was revoked. The determination about his license was upheld by the Appellate Division. In seeking to invoke the doctrine of collateral estoppel based on this administrative determination, plaintiff moved for partial summary judgment on the issues of medical malpractice and the Supreme Court granted that motion. Notwithstanding that determination, the Court reasoned that based on the fact that the rights of the litigant in the administrative proceeding are not the same as in a court of law, specifically, whether it is jury or nonjury, it is different than that of an administrative proceeding. In the former, there is broad disclosure and basic procedural safeguards such as the right to present evidence and to cross-examine witnesses; but in the latter, there is no disclosure other than notice of the charges, and the rules of evidence are often not applicable. Moreover, the scope of review by the appellate court is different. In nonjury trials, the Appellate Division may review the facts and grant judgment based on the evidence that was received at trial (see CPLR 5501; Arnold v State of New York, 108 AD2d 1021 [3d Dept 1985], appeal dismissed 65 NY2d 723 [1985]; see also Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492 [1983]). On the other hand, the review of the administrative agency's quasi-judicial determination is, in contrast, very limited (see CPLR 7803; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 [1974]). The court must defer to the agency's determination unless there is no rational basis for the decision (Matter of Goomar v Ambach, 136 AD2d 774 [1988]). Since the plaintiff instituted the complaint against the doctor, and he defended to protect his license, a ruling in her favor would effectively make the administrative agency the ultimate factfinder, with only limited judicial review, thereby depriving the defendant of valuable rights associated with civil actions, including the constitutional right to a trial by jury. Whether a party has a full adjudication on the merits in such proceeding or not, the nature of the proceeding itself deprives any party of the absolute right to the invocation of collateral estoppel.

In addition to the above, see also Jeffreys v Griffin (301 AD2d 232 [2002]), finding that the BPMC revocation of a doctor's{**63 Misc 3d at 179} license did not have collateral estoppel effect in the patient's civil court action for assault and battery, and also finding that the disciplinary proceeding, including the failure to keep records, would have been grounds for license revocation and the disciplinary proceeding had not provided the discovery opportunities available in civil litigation. The Court relied on the rationale in Stevenson as a basis for its finding.

Cramer v Benedictine Hosp. (190 Misc 2d 191 [2002]), contrary to the contentions proffered by defendants here that Public Health Law § 10 (2) provides for the admission of government agency reports into evidence that would otherwise be hearsay, does not ipso facto provide a legal basis for the reports to be admitted into evidence. Although those reports constitute factual findings based on an investigation pursuant to statutory authority, they may be excluded from evidence if the sources of information or other circumstances indicate a lack of trustworthiness.

In Cramer v Kuhns (213 AD2d 131 [1995], lv dismissed 87 NY2d 860 [1995]), relied upon by Cramer v Benedictine Hosp., the Court found reversible error in the trial court's admission into evidence of a National Highway Safety Administration report in a product liability case. Similar to Public Health Law § 10 (2), notwithstanding such law and facts, Cramer v Kuhns (213 AD2d at 137 [internal quotation marks omitted]) found that

"[t]he admission of a government report under this provision is committed to the trial court's sound discretion and will hinge upon whether the hearsay document offered in evidence has sufficient independent indicia of reliability to justify its admission . . . To that end, it has been suggested that factors to be weighed in determining the document's trustworthiness and reliability, among other things, might include (1) the timeliness of the investigation, (2) the skill and/or experience of the investigator, (3) whether the report was based upon testimony adduced at a hearing, and (4) the possibility of bias (see, Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C4520:3, at 246)."

The Cramer v Benedictine Hosp. court opined that the purpose of the Department of Health's investigation was to identify deficiencies in the care rendered to the plaintiff/decedent and resolve them as soon as possible. The report was{**63 Misc 3d at 180} not designed to assess or fix responsibility for negligent care. In addition, no one involved in its preparation was called by plaintiff as a witness. As compelling, to admit the full contents of the report under the circumstances would be patently unfair and would deprive the defendant of any meaningful way by which it could defend against the opinions contained in the report. "The specific factual findings that relate directly to the care received by the decedent while a patient should be received into evidence. However, the court shall distinguish facts from opinion and make the relevant redactions of the report that invade the jury's role of determining facts." (Cramer v Benedictine Hosp., 190 Misc 2d at 194.) The report should not have been admitted in evidence since "it was preliminary in nature, . . . it was brief and conclusory and . . . no one involved in its preparation was called to testify" (id. at 193).

In Maraziti v Weber (185 Misc 2d 624, 626 [2000]), Justice Marlow determined that while findings of OPMC related to medical malpractice action brought by the mother of a brain damaged infant were relevant and admissible in that action, findings with respect to unrelated aspects of physicians' practices, including revocation of one medical physician's obstetrical practice, were inadmissible as being "of marginal relevance . . . [and] likely to unduly prejudice the jury. The jury should not be . . . impliedly encouraged . . . to assume that the facts underlying [a prior] incident . . . necessarily govern a finding about a [current] incident, solely because the . . . events [were] substantially similar." Justice Marlow clearly distinguished both Bogdan v Peekskill Community Hosp. (168 Misc 2d 856 [Sup Ct, Westchester County 1996]) and Stevenson v Goomar (148 AD2d 217 [3d Dept 1989]). In Bogdan, OPMC's charges against the doctor were based on "departures from good and accepted medical practice in nine distinct patient cases . . . There, the OPMC's findings were received in evidence because six of them formed the predicate for defendant hospital's suspension of plaintiff" (Maraziti, 185 Misc 2d at 625).

Plaintiff's reliance on Bogdan and similar cases (see Stevenson v Goomar, 148 AD2d 217 [3d Dept 1989]) is based on Public Health Law § 10 which allows for the admission of written reports of OPMC on questions of fact pertaining to complaints or investigations. However, "the report may not be used as a vehicle to admit into evidence information which would otherwise be inadmissible." (Bogdan at 860.)

Both Bogdan and Stevenson involved specific disciplinary proceedings commenced against doctors. The OPMC findings{**63 Misc 3d at 181} about multiple incidents of doctors' medical misconduct [*6]were critical in determining whether disciplinary actions against the doctors were justified.

"However, while OPMC's findings concerning plaintiff's case are clearly relevant, information from reports of OPMC unrelated to the instant case would be of marginal relevance at best, but would be likely to unduly prejudice the jury. The jury should not be provided the opportunity, or be impliedly encouraged, to assume that the facts underlying one incident would necessarily govern a finding about a subsequent incident, solely because the two events are substantively similar." (Maraziti at 626 [emphasis added].)

"Plaintiff's request would not only create undue hardship and unfair risks for defendants—turning some trials into a distracting series of mini-trials—but, allowing such evidence . . . would, more than likely, negatively impact a jury's objectivity" (id.).

The Maraziti court justifiably found that pursuant to Public Health Law § 10 and subject to a proper evidentiary foundation, the plaintiff could use the OPMC findings only that directly involve the events underlying the case, particularly since those findings are more likely to be relevant to the factual issues presented to that jury. However, the defendant's motion to preclude plaintiff from introducing evidence of OPMC findings unrelated to that case was granted.

In Dooley v Columbia Presbyt. Med. Ctr. (2009 WL 2381331, 2009 US Dist LEXIS 66369 [SD NY, July 29, 2009, No. 06 Civ 5644 (JFC), Francis IV, Magistrate J.]), a medical malpractice case, the court was faced with a motion by Dr. McMurtry, pursuant to federal rules, to preclude the admission of a consent order entered into with OPMC. The magistrate likened his case to Maraziti v Weber where the question of law was whether to admit into evidence the consent order of the prior OPMC disciplinary proceedings against the doctor arising from unrelated acts. As will be discussed below, the evidence was deemed inadmissible. Although Maraziti was decided under New York law, the magistrate used the same rationale for exclusion under federal law. The plaintiff sought to use allegations of poor record keeping brought against Dr. McMurtry. The court, by way of comparison, showed that the OPMC proceeding involved a different patient and a different type of alleged error. The errors{**63 Misc 3d at 182} alleged there were administrative, whereas the errors alleged in his case involved serious substantive deviations and defaults in the provision of medical care. "[T]here is little or no relationship between the facts of the prior proceeding and those giving rise to the instant lawsuit. As in Maraziti, the consent order and related evidence are, at best, only marginally relevant to the instant . . . malpractice lawsuit" (Dooley, 2009 WL 2381331, *2, 2009 US Dist LEXIS 66369, *6).

He further states that "admitting that evidence would unduly prejudice Dr. McMurtry and threaten to confuse or distract the jury. Dr. McMurtry would be forced to simultaneously defend against two separate sets of claims, inviting a distracting 'mini-trial' into the course of the main proceeding." (Dooley, 2009 WL 2381331, *2, 2009 US Dist LEXIS 66369, *6-7.) Moreover, as the facts underlying the consent order and the reasons that Dr. McMurtry decided to sign it are contested, the jury would have to resolve those tangential issues before it could consider the probative value of the consent order in relation to the central issues in the case. "Under these circumstances, whatever significance this evidence might have is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, thus warranting exclusion." (Dooley, 2009 WL 2381331, *2, 2009 US Dist LEXIS 66369, *4-7 [internal quotation marks omitted]; Fed Rules Evid rule 403.)

One of the exceptions to the preclusionary effect of the findings of an administrative proceeding is where the professional takes the stand and the underlying findings involve the nature of the acts or crimes that involve dishonesty or acts of moral turpitude. In Torres v Ashmawy (24 Misc 3d 506 [2009]), another medical [*7]malpractice case, the defendant doctor submitted a motion in limine for an order to preclude the introduction into evidence at trial of evidence or references to the administrative proceedings, findings and/or determination of the BPMC of one of the doctors and that doctor's subsequent conviction for attempted unauthorized practice of medicine. Judge Lubell held that the sustained findings of fraudulent practice were admissible, upon cross-examination of the doctor; whether or not the sustained findings of fraudulent practice constituted prior immoral, vicious or criminal conduct bearing on credibility, at the very least, they demonstrated an untruthful bent or willingness or disposition on the doctor's part to voluntarily place his own self-interest and advancement ahead of principle{**63 Misc 3d at 183} or the interest of our society. The other findings of the OPMC related to specifications of gross negligence, gross incompetence, negligence, incompetence and the failure of record keeping were excluded. The distinction between the admissibility of the evidence lies with the fact that the nature of the crime that involves dishonesty such as theft, fraud and forgery demonstrates the willingness to place one's own interest ahead of the interests of our community thereby impacting directly upon the issue of credibility. Based on this rationale, the court concluded that the doctor could be cross-examined about his conviction upon his plea of guilty for attempted unauthorized practice of medicine and the underlying facts.

Specifically, in the cases involving the above statute, in Cipriano v Ho (29 Misc 3d 952 [2010]) the BPMC finding that a surgeon had engaged in professional misconduct was not admissible during the patient's case-in-chief in a medical malpractice case against the surgeon where the negligent acts in question were unrelated to malpractice of that particular plaintiff; however, the plaintiff was permitted to use the disciplinary action to impeach Dr. Ho's credibility. The court relied on the above case authority including Torres, Maraziti and Dooley.

Additionally, in Castillo v 62-25 30th Ave. Realty, LLC (74 AD3d 1116, 1118 [2d Dept 2010]), the same rationale was affirmed by the Appellate Division on the grounds that the

"trial court improvidently exercised its discretion in precluding the defendants from questioning the plaintiff's treating orthopedist regarding the underlying factual allegations that led to the suspension of his license to practice medicine, a topic which would have had a bearing on his credibility if called to testify by the plaintiff." (See also Williams v Halpern, 25 AD3d 467, 468 [1st Dept 2006] [plaintiff's expert pathologist/"suspensions of his license bear on his credibility"]; Spanier v New York City Tr. Auth., 222 AD2d 219, 219 [1st Dept 1995] [plaintiff's physician/"allegations of improper billing, and other misconduct . . . had a bearing on the doctor's credibility"]; Alonso v Powers, 220 AD2d 311, 311 [1st Dept 1995] [plaintiff's expert/"suspension( ) from the practice of medicine"].)

In Castillo, the Appellate Division, Second Department, relied on the rationale of the Court of Appeals in Badr v Hogan (75 NY2d 629, 634 [1990]) that "the general rule [is] that a witness {**63 Misc 3d at 184}may be cross-examined with respect to specific immoral, vicious or criminal acts which have a bearing on the witness's credibility . . . [and] the inquiry must have some tendency to show moral turpitude to be relevant on the credibility issue." The issue is whether the probative worth of evidence outweighs the risk of unfair prejudice (see Matter of Carlos V., 192 AD2d 661, 662 [2d Dept 1993]; see also Matter of Jessica Y., 206 AD2d 598, 599 [3d Dept 1994] ["the issue of credibility outweighed the risk of unfair prejudice"]).

In Ho, there was little probative value to the findings and determinations as to negligence [*8]in Dr. Ho's treatment of a single patient on more than one occasion. Without more, negligent acts or omissions do not "tend[ ] to show moral turpitude" (see Badr v Hogan, 75 NY2d at 634). It was concluded that it would not prejudice him to the extent that Dr. Ho did acknowledge the disciplinary action at his deposition.

In a second medical malpractice case, Yarborough v Cattani (43 Misc 3d 785 [2014]), the findings by the OPMC of incompetence in a doctor's delegating postoperative care to his non-physician office staff were inadmissible and general statements at the hearing about the doctor's credibility were not facts that could be used by the patient to impeach; however, statements that the doctor's conduct fell below the standard for honest reporting could be used by the patient to impeach the doctor's credibility.

In the seminal case of Mazella v Beals (27 NY3d 694 [2016]), the Court of Appeals held, inter alia, in a medical malpractice case, the admission of a consent order with the OPMC was reversible error. This case involved the decedent's suicide by brutally stabbing himself.

Prior to trial, the defendant filed a motion in limine to preclude, among other things, a consent agreement between the defendant and the OPMC. OPMC brought misconduct charges against the doctor on the grounds that he "deviated from accepted standards of medical care" by prescribing medications to 13 patients over several years without adequately monitoring and evaluating them, and often without any face-to-face visits (id. at 702). The decedent was one of the listed patients. By consent agreement and order, defendant agreed not to contest the charges of negligence specifically excluding the decedent. The Supreme Court denied the motion and determined that the consent order "would be admissible in full {**63 Misc 3d at 185}with regard to the issues surrounding not only the [decedent's] case, but also [the other patients], based on testimony of habit and credibility" (id.).

On the date of trial, the doctor agreed that he prescribed Paxil to the decedent over the course of more than 10 years without any face-to-face contact and conceded that his action was a deviation from acceptable medical practice. The defendant moved again to exclude the OPMC consent order since it was no longer probative of any disputed issue. Plaintiff called defendant as a witness and he acknowledged his failure with the decedent but denied malpractice. Over objection, the court allowed the consent order into evidence and allowed plaintiff to question him about its contents. The jury found the doctor liable and awarded the plaintiff $1.2 million. Defendant's motion to set aside the verdict was denied; the Appellate Division affirmed, and the High Court reversed.

First, the Court found that the "[doctor] proximately caused decedent's [death]," by his own admission (id. at 706). Sufficient expert testimony connected the doctor's negligence with the decedent's suicide.

Second, as to evidentiary ruling, the Court stated that the trial court had wide discretion in making evidentiary rulings, absent an abuse of discretion, and those rulings should not be disturbed on appeal. (People v Carroll, 95 NY2d 375, 385 [2000].) To be admissible, evidence must be relevant, and its probative value must outweigh the risk of any undue prejudice (People v Morris, 21 NY3d 588 [2013]). Although the Court found that the admissibility of a graphic photograph of the decedent was not an abuse of discretion, the admission of the OPMC consent order was "a wholly different" matter (Mazella at 709).

Relying on well settled law that it is improper to prove that a person did an act on a [*9]particular occasion by showing that he did a similar act on a different unrelated occasion, the Court found that contrary to the plaintiff's arguments, none of the exceptions to this rule—motive, intent, the absence of mistake or accident—applied in the case.

The High Court reasoned that the consent order was not probative of either the defendant's negligence or the question of proximate cause.

"As part of the consent order defendant agreed not to contest negligent treatment of certain anonymous patients, none of whom was the decedent. As{**63 Misc 3d at 186} such, defendant preserved his objections to factual allegations related to decedent and any charges of misconduct based on those allegations. Since the consent order did not establish facts concerning defendant's treatment of decedent, it was not probative as to that issue . . .

"[Lastly], any possible relevance of the consent order's contents was outweighed by the obvious undue prejudice of his repeated violations of accepted medical standards." (Id. at 710, citing Maraziti v Weber.)

The High Court was also unpersuaded by the plaintiff's argument that the evidence was admissible to impeach defendant's credibility. "Collateral matters relevant only to credibility are properly excluded because they distract the jury from the central issues in the case, and bear the risk of prejudicing the jury based on character and reputation." (Id. at 711; see Badr v Hogan, 75 NY2d 629 [1990]; People v Schwartzman, 24 NY2d 241, 245 [1969]; see also Jerome Prince, Richardson on Evidence § 4-410 [Farrell 11th ed 1995].) It is an abuse of a trial court's discretion to admit evidence of bad acts when such evidence lacks any probative value or bears only marginal relevance, outweighed by its prejudicial effect (see Badr v Hogan).

In conclusion, "given defendant's concession at trial that he deviated from accepted medical practices, the consent order was unquestionably collateral, without probative value, and, regardless, improperly prejudicial." (Mazella at 711.)

"[T]he evidence portrayed defendant as a serial pill pusher, oblivious to the health and safety of those in his care, and a danger to patients. Since the evidence could have induced the jury to punish him for his unrelated misdeeds, admission into evidence of the consent order was sufficiently prejudicial to defendant so as to require a new trial." (Id. at 712 [emphasis added].)

In applying the above principles to the case at hand, suffice it to say, this is an automobile accident case, not a medical malpractice case or criminal case as in the above cases. In those cases, it is not difficult to contemplate arguments by counsel to justify their requests for the admission of any OPMC records or orders. The OPMC records, reports and hearings may certainly be relevant for those kind of cases, particularly when the plaintiff seeks recovery from the very kind of{**63 Misc 3d at 187} wrongdoing and/or malfeasance that is the subject of the OPMC reports and/or hearings. This case, however, is a totally different matter.

The defendants assert that the plaintiff is attempting to perpetuate a fraud on the jury by attempting to have a non-treating doctor testify concerning the surgery; the defendants summarily and conclusory assert that the findings of OPMC for Dr. Manouel were based on the fact "that the surgery may not have been performed." Defendants further contend that the OPMC found that Dr. Manouel committed negligence, was incompetent, committed fraud, filed false reports, and performed unwarranted surgery. More significant, the defendants further contend that "Dr. Manouel was found to have engaged in this conduct on or about the time that he performed the procedure on the plaintiff." As will be discussed below, the plaintiff would be the only relevant patient of Dr. Manouel on the OPMC proceeding, but he was not a patient named in the investigation or a complainant.

Both parties have not presented a complete record of the OPMC proceeding. There was no evidentiary fact-finding based on an administrative hearing. In the consent order, as properly asserted by the plaintiff, Dr. Manouel states "I assert that I cannot successfully defend against at least one of the acts of misconduct alleged, in full satisfaction of the charges against me" and agreed to the penalties stated above. He does not explicitly admit to any particular charge. In each of the cases at the trial court, Appellate Division and Court of Appeals, the plaintiff was a named complainant at the OPMC proceeding and the conduct alleged in the consent orders constituted grounds for the medical malpractice claims. In every instance in which the complainant was not a party to the OPMC investigation, report or order, the courts excluded the introduction of the OPMC report, consent order and/or investigation. The rationale is pertinent here; it is collateral, irrelevant and unduly prejudicial. In this case, the consent order does not name the plaintiff, nor does it refer to the date of the plaintiff's surgery. In fact, the surgery involved in this case occurred on May 17, 2011. Whereas, as more fully described in the statement of charges annexed as exhibit E, the surgery allegedly performed by Dr. Manouel, contrary to proper medical practices, occurred as following: Patient A—March 23, 2010; Patient B—November 9, 2010; Patient C—February 18, 2011; Patient D—August 27, 2010; and Patient E—May 13, 2008.

{**63 Misc 3d at 188}The defendants' argument is in contravention of our well settled general rule of evidence, applicable to both criminal and civil cases, that it is improper to prove that a person did an action on a particular occasion by showing that he did a similar act on a different, unrelated occasion. (Jerome Prince, Richardson on Evidence §§ 170, 184 [10th ed 1973].) Defendants have not presented any facts that would support one of the exceptions to this general rule of evidence such as acts of Dr. Manouel that tend to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan; or (5) identity (People v Molineux, 168 NY 264, 293 [1901]; accord Proposed NY Code of Evidence § 404 [b] [1994]). Defendants seek to collaterally attack the surgery of Dr. Manouel on the plaintiff by the admission of the OPMC consent order which contains other patients of the doctor, not the plaintiff. The surgeries claimed by the OPMC are unrelated claims and not material issues of fact in this case. The admission of such consent order would be tantamount to the admission of unrelated "prior bad acts" of the doctor that are offered to prove that the doctor acted the same way in this case—performed surgery that was not required on the plaintiff. More compelling for our analysis, the consent order is not probative of the material issue of fact in this case which is whether the plaintiff can substantiate a "permanent injury" as defined under the Insurance Law and the resulting damages.

As equally important, the fact that this surgery on the plaintiff occurred during the same time as those other patients is not dispositive of any material fact in this case. The surgery allegedly performed by Dr. Manouel occurred as following: Patient A—March 23, 2010; Patient B—November 9, 2010; Patient C—February 18, 2011; Patient D—August 27, 2010; and Patient E—May 13, 2008. In fact, the surgery of the plaintiff was performed after all of these surgeries and was specifically excluded from the disciplinary action taken against Dr. Manouel. There are no facts presented that the OPMC had any findings about this surgery at all. Since no evidence has been presented of the dates, times and the extent of the investigation, this court cannot presume any facts about this surgery—whether it was or was not a deviation from the standard of acceptable medical practice—and certainly cannot have the evidence presented to the jury which could lead to pure speculation and total confusion.

Also critical here is the fact that the defendants may not seek to use the consent order on [*11]the grounds of collateral estoppel. {**63 Misc 3d at 189}Dr. Manouel is not a party to this action and did not initiate or otherwise affirmatively seek to litigate the claim at the administrative level, and accordingly, the defendants may not rely on the preclusive effect that is customarily granted to many administrative determinations. (See Ryan v New York Tel. Co., 62 NY2d 494 [1984]; Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147, 153 [1988]; Gilberg v Barbieri, 53 NY2d 285, 292-294 [1981].)

Moving on to the issue of the use of the OPMC consent order for the purposes of impeachment of the credibility of Dr. Manouel, this option is also without merit. The defendants seek to improperly use the consent order to impeach the credibility of the doctor that the plaintiff has affirmed will not testify. Since he will not testify, his credibility is not at issue and he cannot be impeached. "Collateral matters relevant only to credibility are properly excluded because they distract the jury from the central issues in the case, and bear the risk of prejudicing the jury based on character and reputation." (Mazella at 711; see Badr v Hogan, 75 NY2d 629 [1990]; People v Schwartzman, 24 NY2d 241, 245 [1969]; see also Jerome Prince, Richardson on Evidence § 4-410 [Farrell 11th ed 1995].)

In addition to the above, this court could not allow this evidentiary admission because the doctor will not be a witness and the plaintiff was not a patient that complained about the alleged misconduct of the doctor. In this case, the plaintiff would not object to the surgery since common sense would dictate that it would unduly prejudice his own damages claims here. Although this court acknowledges that the treating doctor is not being called as a witness by the plaintiff, the defendants are not prejudiced in any manner and neither would the jury. The defendants have more than ample evidence to defend this simple automobile accident case. The defendants acknowledged that they have conducted their own independent medical examination of the plaintiff and have their own experts to testify about the surgery, the lack of proximate cause and absence of a causal relationship to the accident. Plaintiff has the burden to prove that the injuries meet the threshold requirements of section 5102 of the Insurance Law and prove damages therefrom. In addition, the defendants' medical experts have the right to opine that the surgery was allegedly improper and deviated from a proper standard of medical care without the testimony of Dr. Manouel and without the OPMC consent order. It is within the exclusive province of the jury to{**63 Misc 3d at 190} determine the trustworthiness and the reliability of such testimony. Thus, contrary to the defendants' contentions, Dr. Manouel's history of alleged fraud, negligence and incompetence are not the material issues for trial in this matter, lack relevance and are unduly prejudicial to the plaintiff.

Moreover, even if the treating doctor were to testify, this court would still preclude the introduction into evidence of the OPMC consent order since "[defendants'] request would not only create undue hardship and unfair risks for [plaintiff]—turning some trials into a distracting series of mini-trials—but, allowing such evidence . . . would, more than likely, negatively impact a jury's objectivity." (Maraziti at 626.) A jury would likely assume the facts underlying the prior incidents were the same as the facts in this case because the underlying events were substantially similar.

The defendants' reliance on Baragano v Vaynshelbaum (2005 NY Slip Op 30465[U] [2005]) is misplaced and distinguishable from this case and has been effectively overruled not only by the Maraziti court, but also by the Court of Appeals in Mazella v Beals. The consent order here has no bearing on whether the plaintiff sustained a serious injury under the law and sustained damages.

As so aptly stated in Badr v Hogan (75 NY2d 629 [1990]), the prior evidence of unrelated bad acts of this doctor lacks any probative value of the material issue of fact in this case and is outweighed by its prejudicial effect. The jury would raise questions about whether the doctor was negligent, did he properly treat the plaintiff, "if, in fact, was there any medical need for surgery, and if the procedure had in fact been performed," and was there "no medical need for a three-compartment synovectomy, if the procedure had in fact been performed." These are not the material issues of fact and law in this case but instead are tangential and of marginal relevance and are highly prejudicial to the plaintiff.

The defendants' argument that the doctor is untrustworthy and his records unreliable is not supported by the evidence presented by either party. These are bold and conclusory claims that are not supported by any fact-finding investigation but were claims in a statement of charges only. As the courts have stated plainly above, the administrative proceeding such as the OPMC deprives the accused of basic trial rights including full and open discovery, examinations before trial of the witnesses and nonparty witnesses, and a full and fair opportunity to present the case to the jury.{**63 Misc 3d at 191}

Notwithstanding the defendants' reliance on Public Health Law § 10, the trial court has wide discretion in its determination of the admissibility of evidence. This statutory presumption does not usurp the discretionary power of the trial court and such evidence, even if "presumptive . . . of the facts so stated therein, and shall be received as such in all courts and places," is not relevant to this action and even if it were marginally relevant, its probative value is outweighed by its undue prejudice to the plaintiff.

This broad power of the trial court's discretion to determine the admissibility of evidence has been confirmed by the Appellate Divisions of both departments that dismissed appeals from orders that denied Frye hearings (Frye v United States, 293 F 1013 [DC Cir 1923]) "as no appeal lies from an evidentiary ruling made in advance of trial which constitutes, at best, an advisory opinion" (see Gonzalez v Arya, 140 AD3d 925, 926 [2016]; Peykarian v Yin Chu Chien, 109 AD3d 806 [2013]; Fontana v LaRosa, 74 AD3d 1016 [2010]).

For all of the above reasons, the plaintiff's motion to preclude the admission of the OPMC consent order is granted. The defendants may not introduce into evidence any part of the OPMC record or produce any testimony with regard thereto.