Zelmanowicz v Feld

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[*1] Zelmanowicz v Feld 2006 NY Slip Op 51723(U) [13 Misc 3d 1207(A)] Decided on September 13, 2006 District Court Of Nassau County, First District Marber, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 13, 2006
District Court of Nassau County, First District

Abraham Zelmanowicz, Split Rock Multi-Care Center, L.L.C. and Eastchester Health Care Center, L.L.C., Plaintiffs,

against

Sidney Feld, Defendant.



21026/05

Randy Sue Marber, J.

Before the Court is plaintiff's motion pursuant to CPLR 2201, staying the prosecution of the trial of this action and the same is hereby granted to the extent provided herein.

Plaintiffs' complaint alleges that this action was brought against the captioned defendant, a former employee who was terminated by the plaintiffs, based upon defendant's attempt to "besmirch" plaintiffs "with the stigma of being involved in fraudulent Medicaid billing practices" (Plaintiff's Memorandum page 2). Presently plaintiff Abraham Zelmanowicz is under an indictment which alleges that plaintiffs intentionally and fraudulently submitted false Medicaid claims to the New York State Department of Health. Plaintiffs allege without opposition that "the allegations in the indictment mirror defendant's [alleged] defamation statements" at issue herein. (Id.)

In support of the motion plaintiffs argue that.. "[A]s a result of the pending Criminal Proceeding, Zelmanowicz will assert his Fifth Amendment right against self-incrimination by refusing to testify in the present action while the Criminal Proceeding is pending. Because Zelmanowicz's testimony is necessary indeed critical to successfully prosecuting this defamation claim, plaintiffs will be unable to effectively prosecute this action and prove all the elements of their defamation claims if Zelmanowicz asserts his constitutional right to refuse against his penal interest." (Id. at p. 5) Plaintiffs further argue any delay to the defendant in the captioned matter, is alone insufficient to deny a stay (citing Butt v. International Bus Services, Inc., 255 AD2d 143, 679 NYS2d 616 [1998]. In opposition the defendant argues prejudice in delay and that defendant "...is elderly and suffers from a medical condition which may not allow the defendant to effectively participate in the defense of this action in the future." (Affirmation in Opposition, paragraph "14").

CPLR §2201 expressly allows a Court the authority to "...grant a stay of proceedings in a [*2]proper case, upon such terms as may be just." Further, the grant or denial of a stay in a criminal action pending the resolution of a related criminal action is within the discretion of the trial Court (Britt, supra ). In considering such an issue the Court must consider any prejudice to the parties involved, consideration of judicial resources and the need to avoid inconsistent judgments (Britt, supra ).

Plaintiffs correctly point out that as a plaintiff in this civil action and a defendant in the referenced criminal proceeding, Mr. Zelmanowicz is in the position of prosecuting this defamation action while simultaneously defending against a criminal action, with identical facts and circumstances between the two cases. The Courts have held, "a compelling factor is a situation where a [party] will invoke his or her constitutional right against self-incrimination" (Britt, supra ).

Given all of the foregoing and given the balancing of prejudice to the parties in granting and not granting the relief sought herein, the Court deems the stated interests of the plaintiff to be a controlling factor. Defendant offers only a vague assertion about defendant's health, and when balanced against plaintiff right against self-incrimination, the latter must prevail. However, this matter is not stricken from the Court's calendar and is stayed until November 27, 2006, on which date counsel for the respective parties shall appear before this Court to discuss the need for continuing the stay. Should anything change such as the status of the other criminal proceeding or the status of defendant's health, counsel shall immediately notify each other and the Court in writing. It is the intention of this Court to set this matter down for completion of discovery and trial at the first possible opportunity. Counsel and the parties shall conduct themselves in a manner consistent with this policy.

The foregoing constitutes the decision and order of the Court.

So Ordered:

District Court Judge

Dated: September 13, 2006

CC:Sheppard, Mullin, Richter & Hampton, LLP

Lewis & Johs



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