Missan v Dillon

[*1] Missan v Dillon 2006 NY Slip Op 50875(U) [12 Misc 3d 1153(A)] Decided on March 23, 2006 Supreme Court, New York County Bransten, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 23, 2006
Supreme Court, New York County

Richard S. Missan and Aileen Missan, Plaintiffs,

against

Robert W. Dillon, M.D. and Richard G. Stock, M.D., Defendants.



121379/02

Eileen Bransten, J.

Pursuant to CPLR 2221, plaintiffs Richard S. Missan ("Mr. Missan") and Aileen Missan ("Mrs. Missan") move for renewal and reargument of the motion for a directed verdict made by defendants Robert W. Dillon, M.D. ("Dr. Dillon") and Richard G. Stock, M.D. ("Dr. Stock"), which was granted. Defendants oppose the motion claiming that it is untimely and without merit.

Background

On February 29, 2000, Mr. Missan presented to Dr. Dillon for treatment of prostate cancer. Affirmation in Opposition ("Opp."), at 4. After examining Mr. Missan, Dr. Dillon recommended brachytherapy (the implanting of radioactive seeds into the prostate) and referred Mr. Missan to Dr. Stock. Id.

On March 13, 2000, Dr. Dillon performed a transrectal ultrasound ("TRUS"), which showed that the volume of Mr. Missan's prostate was 40.1 ccs. Opp., at 5. Four days later, on March 17, 2000, Dr. Dillon performed an abdominal sonogram, which demonstrated that Mr. Missan's prostate volume was 65.11 ccs. Opp., at 7.

On April 5, 2000, Mr. Missan presented to Dr. Stock for brachytherapy. Opp., at 7. Dr. Stock performed an intra-operative TRUS and determined that the volume of Mr. Missan's prostate was 65.9 ccs. Id. He then proceeded with the brachytherapy and implanted 147 seeds, which gave off 53 millicuries of radiation. Opp., at 9.

Several months later, on July 13, 2000, Dr. Dillon performed a transurethral resection of the prostate ("TURP"), a surgery in which he passed an instrument through Mr. Missan's rectum. Transcript of Trial Testimony ("TT"), at 552.

In this medical malpractice action, plaintiffs claim that Drs. Dillon and Stock negligently determined that brachytherapy was an appropriate course of treatment for prostate cancer and negligently implanted in him more radiation than was safe or necessary. Affirmation in Support of Motion ("Aff."), at 1,2. Plaintiffs aver that as a result of defendants' negligence, Mr. Missan suffered severe radiation burns to his urethra and urinary bladder.

Trial in this action commenced on September 26, 2005. Aff., Ex. B, at 1. At trial, plaintiffs called Joseph Holt Rose, M.D. ("Dr. Rose"), a physician board-certified in [*2]radiation oncology, as an expert. Aff., at 1-2. Dr. Rose testified, based on his review of the depositions, psychiatric history and records, that defendants departed from accepted standards of medical care in treating Mr. Missan. Aff., Ex. A, at 494-96.

During his testimony, Dr. Rose repeatedly cited an article titled American Brachytherapy Society (ABS) Recommendations for Transperineal Permanent Brachytherapy of Prostate Cancer, 44:4 Int. J. Radiation Oncology Biol. Phys. 789 (1999) (hereinafter "ABS Guidelines"). Dr. Rose testified that he considered himself an expert, but explicitly stated, "I am basing my recommendations on the experts that wrote this article." TT, at 565-66. Dr. Rose further maintained that the ABS Guidelines are reflective of the standard of care in the brachytherapy community and are an authoritative source on the standards of care in brachytherapy. TT, at 557-59. Nonetheless, plaintiffs never provided expert medical proof that the ABS Guidelines are accepted in the profession or that they are relied on by the medical community at large. TT, at 1493. Nor did plaintiffs demonstrate that the ABS Guidelines represented the standard of care at the time of the alleged malpractice.

At the conclusion of plaintiffs' case, defendants moved to dismiss the action, alleging that Dr. Rose's testimony was insufficient to establish a prima facie case of medical malpractice because Dr. Rose improperly relied on the ABS Guidelines, which were not admitted into evidence. TT, at 1470-80.

On October 17, 2005, after hearing oral argument on defendants' motion for a directed verdict, the Court granted the motion and dismissed plaintiffs' case. TT, at 1497. In particular, the Court stated, "Well, I think the issue that [defense counsel] has brought up is that on two separate occasions, in response to your questioning [plaintiffs' counsel], and then again on cross examination, there is no doubt that Dr. Rose did say, and I think that [defense counsel] did quote it, that he stated that he relied on the Guidelines of the American Brachytherapy Association.'"And as [defense counsel] well pointed out, those guidelines are not in evidence."Now the issue is that [Dr. Rose] cannot ***, an expert cannot *** give an opinion unless it was something that is in evidence or unless it was something that he, the expert, has had sufficient amount of expertise in ***."True, he then said he had done five to six brachytherapy or seeding implants on five or six occasions, but that is the only place he says that and throughout his testimony he does say that he relies on the American Brachytherapy Guidelines, which as we well know, are not in evidence.

*** [*3] "The point is, in a medical malpractice case, it is imperative on the plaintiff to bring forth expert testimony that states through the expert's testimony, based on the evidence that is in the record [ ] that is why we put in all the records *** based on his own personal experience or based on something that is in evidence that in his opinion there was a departure ***. "Furthermore, it was Dr. Rose in answer to your questions, [plaintiffs' counsel], as well as [defense counsel's] questions who stated he bases his opinion on the American Brachytherapy Guidelines, a document that was never introduced into evidence or could be introduced into evidence. *** Now he is basing his opinion on something that is not in evidence."

TT, at 1480-83.

Plaintiffs now move to reargue the motion for a directed verdict, which was granted on October 17, 2005.

Analysis

Timeliness of Motion

The Court allowed plaintiffs 30 days to make post-trial motions. Plaintiffs have moved to reargue by order to show cause and CPLR 2211 provides that an order to show cause is "made" when it is signed by the Judge, handed back to the applicant and served on the other parties. Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C2211:5. Because the signed order to show cause was not served on defendants until November 28, 2005 42 days after the final determination defendants assert that this motion is untimely and should not be considered.

Defendants rely on Way v. Goord, 15 AD3d 741, 742 (3d Dept. 2005), and Graham v. County of Fulton, 235 AD2d 824, 825 (3d Dept. 1997), which are inapposite because in each of those proceedings, petitioner's failure to timely serve respondent with a signed order to show cause rendered the court without personal jurisdiction. Here, in contrast, there is no fatal jurisdictional defect and the Court may permit an untimely motion. Cf., CPLR 2004. Defendants' reliance on Fry v. Village of Tarrytown, 89 NY2d 714, 718 (1997), is equally misplaced. In that proceeding, the Court of Appeals considered whether the matter could be adjudicated despite its late commencement and held that the petition was properly addressed since respondents waived their timeliness objection by not raising it in their answer or promptly moving to dismiss.

Here, there is no insurmountable barrier precluding addressing the merits of the motion. Therefore, in the interests of justice, the Court will examine plaintiffs' application.

Reargument

Pursuant to CPLR 2221, a party may move to reargue a motion upon [*4]demonstrating that the court in its determination "overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law." Foley v. Roche, 68 AD2d 558, 567 (1st Dept. 1979), lv denied 56 NY2d 507 (1982). Nonetheless, reargument is not designed to afford an unsuccessful party the opportunity to re-litigate issues already decided or present new arguments. William P. Pahl Equip. Corp. v. Kassis, 182 AD2d 22, 27 (1st Dept. 1992), lv dismissed in part, denied in part 81 NY2d 782 (1993), rearg denied 81 NY2d 782; Pro Brokerage, Inc. v. Home Ins. Co., 99 AD2d 971 (1st Dept. 1984); 300 West Realty Co. v. City of New York, 99 AD2d 708, 709 (1st Dept. 1984), lv dismissed 63 NY2d 952.

Here, plaintiffs' motion to reargue must be denied. Plaintiffs have not demonstrated that the Court overlooked or misapprehended anything. They merely set forth the very same arguments that they raised before the Judge at trial, namely, that Dr. Rose's expert testimony established a prima facie case of medical malpractice because, as an expert, he was permitted to rely on the ABS Guidelines, and therefore, there was sufficient evidence of malpractice. The Court, however, in issuing its decision at trial, carefully considered and rejected these arguments. In any event, even if this Court were to again consider the identical arguments, the outcome would remain unchanged.

Plaintiffs claim that Dr. Rose's testimony established prima facie evidence of several departures. Specifically, plaintiffs allege that they demonstrated that: (1) Dr. Dillon negligently failed to review Mr. Missan's CAT scan before recommending brachytherapy; (2) Dr. Dillon negligently failed to recommend hormone therapy to shrink Mr. Missan's prostate; (3) Dr. Dillon improperly measured Mr. Missan's prostate; (4) Dr. Stock negligently failed to formulate a preplan before placing Mr. Missan on the operating table; (5) Dr. Dillon and Dr. Stock negligently caused Mr. Missan to receive too much radiation; and, (6) Dr. Stock negligently performed a TURP within a few months of surgery.

The following testimony was elicited with regard to each departure:

(1) Dr. Dillon should have reviewed Mr. Missan's CAT scan before recommending brachytherapy.

On direct examination, plaintiffs' counsel asked Dr. Rose whether Dr. Dillon departed from accepted standards of medical care by recommending that Mr. Missan undergo brachytherapy without reviewing his CAT scan. TT, at 504. Dr. Rose did not respond "yes" or "no." Instead, he stated, "[Dr. Dillon] did not bother to review the results of the CAT scan. Now these scans cost at least a thousand dollars each. So it's extremely important to review the report of any x-ray that you order ***. It's the standard of care to review these documents, take them into consideration before prescribing the treatment; otherwise, why would you order them, [*5]you're wasting health care dollars."



TT, at 505-06.

Later, he opined, "[Dr. Dillon] departed from the standard of care as a serious matter, not reviewing the CAT scan which had vital data and deciding whether or not [Mr. Missan] should have had a seed implant." TT, at 524. Dr. Rose then went on to explain that an enlarged prostate and enlarged median lobe are contraindications to brachytherapy because brachytherapy will cause the prostate to swell and worsen urinary tract symptoms. TT, at 524-25. Moreover, when asked whether Dr. Dillon departed by recommending brachytherapy in a patient with a prostate volume of 65 ccs and an enlarged median lobe, Dr. Rose answered "Yes, it is a departure *** because it fails to recognize the enlargement in the median lobe, the obstruction and the fact that the size of the prostate is greater than the recommended maximum of 60 ***." TT, at 533.

Finally, plaintiffs' counsel asked Dr. Rose if Dr. Dillon's negligence in failing to review the CAT scan proximately caused Mr. Missan's urinary tract problems. TT, at 526. Dr. Rose answered "yes," and that he based his opinion on the ABS Guidelines. TT, at 526.

As to this asserted departure, Dr. Rose opined that there was a deviation from accepted practice and asserted, based on the ABS Guidelines, that the departure proximately caused Mr. Missan's injuries.

(2)Dr. Dillon should have recommended hormone therapy.

As to the second asserted departure, plaintiffs' counsel asked Dr. Rose whether Dr. Dillon departed from accepted standards of medical care by not recommending that Mr. Missan undergo hormone therapy to reduce the size of his prostate. TT, at 546. Dr. Rose responded, "It was a departure from good and accepted practice." TT, at 547.

Additionally, plaintiffs' counsel inquired, "Assume for a moment, sir, that Dr. Dillon testified that he determined the prostate by using an abdominal ultrasound was 65 ccs on March 17 of 2000. Once he made that determination, he put a transrectal ultrasound with these measurements and told the patient that no hormones were necessary before the brachytherapy. Do you have an opinion to a reasonable degree of medical certainty whether that was a departure from good and accepted practice?"

TT, at 531.

Dr. Rose answered, "There's discrepancies between the values that you have to explain." TT, at 531. He did not answer this question, nor did he, in response to this question, opine that Dr. Dillon's alleged negligence proximately caused Mr. Missan's injuries.

When plaintiffs' counsel specifically inquired whether Dr. Dillon's negligence was a substantial factor in causing Mr. Missan's "problems," Dr. Rose replied, "Yes, they [*6]definitely were." TT, at 526. Plaintiffs' counsel then asked, "Can you tell me what you base your opinion on, sir?" Id. Dr. Rose said, "Well, the American Society of Brachytherapy has published guidelines. It's like a manual, tells the doctors in the country which patients are suitable for seed implants." Id.

Once again, Dr. Rose asserted that Dr. Dillon departed from accepted standards of medical care and that, based on the ABS Guidelines, such deviations proximately caused Mr. Missan's injuries.

(3)Dr. Dillon negligently measured Mr. Missan's prostate.

On direct examination, plaintiffs' counsel asked Dr. Rose whether Dr. Dillon departed from accepted standards of medical care by recommending brachytherapy after measuring the volume of Mr. Missan's prostate at 40.1 ccs. TT, at 528. Dr. Rose did not answer the question. Id. Instead, he responded, "His measurement of 40.1 was inaccurate *** because Dr. Stock has a better piece of equipment and measured it at 68." TT, at 528. When plaintiffs' counsel followed up by inquiring whether Dr. Dillon departed from accepted medical practice by incorrectly measuring Mr. Missan's prostate, Dr. Rose responded, "It was an inaccuracy." TT, at 529. Dr. Rose never stated that Dr. Dillon was negligent in incorrectly measuring Mr. Missan's prostate volume, and, as such, plaintiffs never established through expert medical testimony that Dr. Dillon departed from accepted standards in mis-measuring Mr. Missan's prostate.

(4)Dr. Stock should have formulated a preplan before putting Mr. Missan on the operating table.

Plaintiffs' counsel also asked Dr. Rose whether Dr. Stock departed from accepted standards of medical care in placing Mr. Missan on the operating table without first determining the shape, size and volume of his prostate. TT, at 547. Dr. Rose responded, "I think it was a departure because the standard of care is to do what is called a preplan ***. Normally the preplan is done three to four weeks before the surgery." TT, at 548,552 (emphasis added). Quoting from the ABS Guidelines, he explained, "The pre-implant treatment planning is commonly performed a few weeks before the brachytherapy procedure but can be performed on the day of the procedure (intra-operative treatment planning)." TT, at 561-62 (quoting ABS Guidelines, at 791) (emphasis added).

Defense counsel then inquired, "Doesn't the American Brachytherapy Society, the guidelines that you say establish the standards, say that it was okay to do what Dr. Stock did?" Dr. Rose answered, "They say you can." TT, at 563. Dr. Rose also agreed that Dr. Stock performed one of two acceptable procedures. Hence, Dr. Rose conceded that Dr. Stock acted in accordance with the ABS Guidelines and there was no evidence of any negligence with respect to the preplan.

(5)Dr. Dillon and Dr. Stock negligently caused Mr. Missan to be administered too much radiation. [*7]

On direct examination, plaintiffs' counsel asked Dr. Rose if defendants departed from accepted standards of medical care by giving Mr. Missan 53 millicuries of radiation. TT, at 535. Dr. Rose responded, "It's higher than the recommended amount, considerably." Dr. Rose, however, did not specifically opine that defendants departed from accepted medical practice in administering 53 millicuries of radiation. Moreover, in reaching his opinion, Dr. Rose cited a 1988 article by researchers at Yale quoted in the ABS Guidelines, TT, at 535, but never opined that the standard of care established in the 1988 Yale article was applicable at the time of the alleged negligence. Opp., at 10.

Furthermore, on cross-examination, defense counsel elicited the following testimony from Dr. Rose: Q:"Would you agree with me that the dose given to the urethra *** of Mr. Missan was in compliance with the regulations and guidelines set by the American Brachytherapy Society?"

A:"Yes."

***

Q:"So in the face of the dose being in accordance with the guidelines, won't you agree and tell the jury that the dose given was in accordance with the standards of care. *** You will agree with that, right?" A:"Yes."

***

Q:"You reviewed the postoperative dosimetry *** [and] this gland was appropriately implanted, correct?"

A:"Yes."

***

Q:"Would you agree with me that despite the technical issues, Mr. Missan's prostate was adequately radiated in all parts of the prostate?"

A:"Yes." [*8]

TT, at 666.

In the end, Dr. Rose's testimony did not establish any departures as to the amount of radiation implanted in Mr. Missan.

(6)Dr. Dillon should not have performed a TURP.

At trial, plaintiffs' counsel asked Dr. Rose if Dr. Dillon departed from accepted standards of medical care by performing a TURP on Mr. Missan within a few months of the surgery. TT, at 552. Dr. Rose responded that a "TURP should not be done at the height of the radiation, and it should not be done within six months of the seed implant. This TURP was done three and a half months after." TT, at 552-53.

Plaintiffs' counsel continued to inquire of Dr. Rose: Q:"Why shouldn't it be done within a six-month period after brachytherapy, sir?"A:"Because the radiation is still ongoing. These seeds are still emitting radiation even three and a half months after they are put in there. *** [He thus receives] twice the radiation if you look at it. It's a like a cloud of radiation."***Q:"Sir, were you able to make a determination, after your review of the records, specifically, Dr. Ashley's records, whether or not Mr. Missan was injured as a result of having a large radioactive cloud, sir?"A:"Yes, I was."Q:"And what do you base your opinion on, sir?"A:"Dr. Ashley was a consultant, I guess, after [Dr. Ashley] became [Mr. Missan's] urologist after [Mr. Missan] left Dr. Dillon. Thirteen months afterwards, after the implant, he did a cystoscopic examination *** and he found an unhealed area, an ulcer, a radiation ulcer in the area where they had done the surgery, the TURP ***."

TT, at 553-55.

From this exchange, the Court was unable to gleen whether Dr. Rose was stating that he had an opinion as to the proximate cause or whether he was explaining what his opinion was as to the proximate cause of Mr. Missan's injuries.

Moreover, even if Dr. Rose meant to opine that Dr. Dillon's negligence proximately caused Mr. Missan's injuries, he apparently did so solely based on the opinion and the alleged findings of Dr. Ashley, who was not subject to cross-[*9]examination.

In support of their motion for reargument, plaintiffs insist that Dr. Rose established that there was negligence because New York law allows experts to rely on material not in evidence if the material is reliable. Aff., at 3. They claim that the ABS Guidelines are reliable because they are a peer-reviewed document not based on hearsay. Aff., at 11. Additionally, plaintiffs point out that the ABS Guidelines are published in the International Journal of Radiation Oncology * Biology * Physics by the American Brachytherapy Society, a society dedicated to the study of brachytherapy. Aff., at 11-12. Plaintiffs set forth that the ABS Guidelines themselves provide that: "The [Prostate Brachytherapy Quality Assurance Group (PBQAG)] as a subcommittee of the Clinical Research Committee of the ABS was entrusted by the ABS Board of Directors to establish the standards of care for permanent brachytherapy. This committee met to identify areas of consensus and controversy and to issue clinical and dosimetric guidelines for transperineal prostate permanent brachytherapy. Results of these deliberations and recommendations of the panel are presented to guide ongoing clinical practice and future investigations."

ABS Guidelines, at 790.

Plaintiffs are incorrect.

To establish a prima facie case of medical malpractice, "plaintiff must not only show that the doctor deviated from accepted medical practice but also that the alleged deviation proximately caused the patient's injury." Koeppel v. Park, 228 AD2d 288, 289 (1st Dept. 1996). This proof must be offered by way of expert medical evidence. Alvarez v. Prospect Hosp., 68 NY2d 320, 327 (1986); Pan v. Coburn, 95 AD2d 670 (1st Dept. 1983); see also, Orr v. Meisel, 248 AD2d 451 (2d Dept. 1998) ("It is well settled that in medical malpractice actions expert medical opinion evidence is required to demonstrate merit, except as to matters within the ordinary experience and knowledge of laypersons").

In reaching an opinion, a witness must generally rely on facts "in the record or personally known to the witness." Cassano v. Hagstrom, 5 NY2d 643, 646 (1959), rearg denied 6 NY2d 882. Expert witnesses, however, may base their opinions upon information provided by other witnesses who are subject to full cross-examination. Casiero v. Stamer, 308 AD2d 499, 500 (2d Dept. 2003); Erosa v. Rinaldi, 270 AD2d 384 (2d Dept. 2000). They may also base opinions on materials not in evidence provided that those materials are "of a kind accepted in the profession as reliable as a basis in forming a professional opinion" and provided that the party seeking to admit the expert testimony establishes the reliability of the out-of-court materials referred to by the witness. Wagman v. Bradshaw, 292 AD2d 84, 85 (2002) (emphasis added); Erosa v. Rinaldi, 270 AD2d, at 384. Once the reliability of an out-of-court document has been established, an expert may rely on it even if the material is inadmissible as hearsay. Borden v. Brady, 92 [*10]AD2d 983 (3d Dept. 1983).

By contrast, expert witnesses may not rely on out-of-court materials that have not been established to be reliable nor may they base their opinions on the opinions of other physicians not subject to cross-examination. Hambsch v. New York City Tr. Auth., 63 NY2d 723, 725 (1984) (expert cannot rely on unknown study that he did not participate in to establish opinion); Wagman v. Bradshaw, 292 AD2d, at 86 (expert cannot testify about another doctor's subjective interpretation of MRI films by relying on out-of-court doctor's MRI report); Erosa v. Rinaldi, 270 AD2d, at 384 (expert's opinion inadmissible because he relied on the reports of four doctors not called to testify at trial).

Furthermore, an expert witness may not rely on the opinion of another doctor if the other doctor's opinion forms the "principal basis" for testifying expert's opinion, "not merely a link in the chain of data upon which that witness relied." Sigue v. Chem. Bank, 284 AD2d 246, 247 (1st Dept. 2001); Borden v. Brady, 92 AD2d, at 984 (expert reliance on report of treating neurologist not subject to cross-examination was improper because neurologist's report formed the principal basis for expert witness's opinion, not merely a link in the chain of data on which that witness relied).

Here, the record unmistakably demonstrates that plaintiffs' expert solely relied on the ABS Guidelines or on another physician's opinion in testifying that defendants deviated from accepted practice and that their alleged malpractice caused Mr. Missan's injuries. Dr. Rose testified, "I am basing my recommendations on the experts that wrote this article." TT, at 565-66 (emphasis added). That article containing the ABS Guidelines was never offered into evidence. Plaintiffs also failed to provide any proof at trial that the ABS Guidelines are "of a kind accepted in the profession as reliable as a basis in forming a professional opinion." Wagman v. Bradshaw, 292 AD2d, at 85. Because the reliability of the ABS Guidelines was never established, Dr. Rose's testimony that Drs. Dillon and Stock departed from accepted standards of medical care by not following the procedures outlined therein and that such deviations caused Mr. Missan's injuries is insufficient to establish negligence. Wagman v. Bradshaw, 292 AD2d, at 89 ("The professional reliability' exception does not permit an expert witness to offer opinion testimony based on out-of-court material *** for the truth of the matter asserted in the out-of-court material").

Furthermore, regardless of whether they were admitted into evidence, Dr. Rose would not be permitted to testify based on the ABS Guidelines because plaintiffs never established that the Guidelines were intended to create a standard of care. Diaz v. New York Downtown Hosp., 287 AD2d 357, 358 (1st Dept. 2001) ("Failure to abide by guidelines or recommendations that are not generally accepted standards in an industry will not suffice to raise an issue of fact as to defendant's negligence"), affd 99 NY2d 542 (2002).

Indeed, the ABS Guidelines specifically state, "these broad recommendations are meant to be technical and advisory in nature; however, the responsibility for medical decisions ultimately rests with the treating physician." ABS Guidelines, at 790 [*11](emphasis added). If the ABS had intended to create a standard of care in promulgating the guidelines, it would have used obligatory terms. See, Diaz v. New York Downtown Hosp., 287 AD2d, at 358 (recommendations of American College of Radiology did not establish standard of care because they did not say "must," but "couched [the recommendations] in advisory terms").

For the foregoing reasons, Dr. Rose's testimony, which was based on the ABS Guidelines and the opinion of Dr. Ashley, is insufficient. Because plaintiffs failed to provide any other proof of medical malpractice, the Court properly dismissed plaintiffs' case. See, Corsack v. Brody, 255 AD2d 222, 223 (1st Dept. 1998) (case dismissed for plaintiffs' failure to provide admissible expert evidence of proximate cause at trial); Mortensen v. Memorial Hosp., 105 AD2d 151, 158 (1st Dept. 1984); see also, Evans v. Holleran, 198 AD2d 472, 473 (2d Dept. 1993).

Accordingly, it is

ORDERED that plaintiffs' motion for reargument is denied.

This constitutes the Decision and Order of the Court.

Dated: New York, NY

March 23, 2006ENTER

_________________

Hon. Eileen Bransten