OneBeacon Am. Ins. Co. v Colgate-Palmolive Co.

OneBeacon Am. Ins. Co. v Colgate-Palmolive Co. 2012 NY Slip Op 04833 Decided on June 14, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 14, 2012
Andrias, J.P., Friedman, Sweeny, Manzanet-Daniels, Román, JJ. 7944-
651193/11 7944A

[*1]OneBeacon America Insurance Company, Plaintiff-Appellant,

v

Colgate-Palmolive Company, Defendant-Respondent, Liberty Mutual Insurance Company, Defendant.




Hardin, Kundla, McKeon & Poletto, P.A., New York (George
R. Hardin of counsel), for appellant.
Anderson Kill & Olick, P.C., New York (Alexander Hardiman
of counsel), for respondent.

Interim orders, Supreme Court, New York County (Carol R. Edmead, J.), entered November 10, 2011, which, inter alia, granted defendant Colgate-Palmolive Company's motion to stay this action, and stayed plaintiff's motion to compel discovery, unanimously affirmed, without costs.

Supreme Court properly stayed this action pending the resolution of an appeal in a related action among the parties in Massachusetts (see CPLR 2201; Asher v Abbott Labs., 307 AD2d 211 [2003]). The issues, relief sought, and parties in the two actions are substantially identical (see id.). Plaintiff's argument that the Massachusetts action is no longer pending because it was dismissed is unavailing, since an appeal was taken from the order of dismissal (see Rael Automatic Sprinkler Co. v Solow Dev. Corp., 58 AD2d 600 [1977]; D'Aprile v Blythe, 53 AD2d 1059, 1060 [1976]). The duplication of effort, waste of judicial resources, and possibility of inconsistent rulings in the absence of a stay outweigh any prejudice to plaintiff resulting from the fact that defense counsel is located in New York (see Asher, 307 AD2d at 212), particularly since [*2]the materials that may be relevant to whether plaintiff is entitled to independent counsel, i.e., liability insurance policies, correspondence from the insurance companies, and the insurance claims files, and insurance company witnesses, are located in Massachusetts.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 14, 2012

CLERK