Kram Knarf, LLC v Djonovic

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Kram Knarf, LLC v Djonovic 2009 NY Slip Op 33478(U) May 6, 2009 Supreme Court, Bronx County Docket Number: Index No. 20347/08 Judge: Nelson S. Roman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. • /"..\ • ,6UPR~E COURT OF THE ST ATE OF i',EW YOR<:: COJ~Jry OF BRONX t --------------------------------------------------------------------------x KRA.M K~'1ARF, MILLER, , ,\AARK GJOf'.IAJ, AND FRA.NK S. DECISION AND ORDER Plaintiff(s), Index No: 20347 /08 - against VALENTIN DJONOVIC, AND ZADRIMA DJONOVIC & GOJCAJ, LLP., Defendant(s). --------------------------------------------------------------------x Defendants move seeking an Order pursuant to CPLR §§2201 and 5519(c), staying all action in the instant action during the pendency of an appeal. Defendants aver that a stay is warranted insofar as the appeal has merit and because plaintiffs will suffer no prejudice thereby. Plaintiffs oppose the instant application averring that defendants have failed to establish circumstances warranting the relief sought, namely that the pending appeal will be resolved in defendants' favor. For the reasons that follow hereinafter, defendants' motion is hereby granted. The instanr action o•~e for 'egai malpractice. 'n support of the vvithfn r-nction, defendants subn1it a copy of this Co,__;rfs Order ciated Nove··l1ber 17, 2008, 'Nherein this Court denied defendonts' pre<JnS'-,..-ver rnot\on seeking disn:issal of the instant action, The decision i [* 1] ;. • • 1.,vos vo!urriinous and speaks for itseif. Hovvever, the crux of the Court's decision \VOS defendants' failure to establish entitlement to the relief sought. Defendants submit a Notice of Appeal dated January 9, 2009, evincing that defendants were and are appealing this Court's Decision and Order. In opposition to the instant motion, plaintiffs submit no evidence. Discretionary Stays Pending Resolution of an Appeal CPLR §§5519(0) and (b) prescribe circumstances under which on appeal gives rise to an automatic appeal, such as when the order appealed from directs the payment of money or when the judgment appealed from order an insured to pay more than the inure's policy. When an order appealed from does not give rise to an automatic stay, a stay may nevertheless be prayed for pursuant to CPLR §5519©. Dworetzky v. Ball, 50 A.D.2d 615 (3'0 Dept. 1975). CPLR §55 l 9(c) reads (c) Stay and limitation of stay by court order. The court from or to which an appeal is taken or the court of original instance may stay all proceedings to enforce the judgment or order appealed from pe<cding an appeal or determination on a motion for permission 10 appeal :n a case riot provided for in s'"'bdi'/sion (a) or st_•b:::!ivision (b), or ma'( grant a limited s!av ssr rnoy vacate. •im,t or rriodifv any s'.ay ;rnposed by subdivisior, {a). subdivision {b} or this subdivision. except that only the court to which on c1ppeci is tc1ken n:oy vccote, lin1it er rncdify a sfoy Jrn( usec:i by pciragrcph one of subdivision (c)_ n ~tny- p: rs:vir:t to CPLR §55 9(c) is oure!y vvithin fr:e court's [* 2] • • discretion. Q,risiv Shainswit, 119 ,.;.D.2d 418 (1'' Dept. 1986). In deciding whether to grani a discretionary stay pencing an appeal, courts often require that the pending appeal have merit. Pctkovsck v. Snyder, 251 A.D.2d l 088 (4' 0 Dept. I 998) (Court derned application for a discretionary stay pending petitioner's appeal when said appeal lacked merit.); Wilkinson v. Sukiennik, 120 A.D.2d 989 (4'" Dept. 1986) /Court granted stay enjoining compliance with a prior order because the appeal sought had merit. Contention that order directing that plaintiff pay use and occupancy of a certain premises was improper had merit, insofar as plaintiff had title of said premises.): Rosenbaum v. Wolff, 270 A.D. 843 (2"d Dept. 1946). Whether the appellant stands to suffer injury in the absence of a stay is yet another factor considered by the court. Rosen v. Baer, 3 AD.2d (4 th Dept. 1957) (Court denied application seeking stay pending an appeal when it was clear that appellant would suffer no harm in the absence of stay.). CPLR §2201 and Stays CPLR §2201, the provision governing discretionary stays, reads Except where otherwise prescribed by law, the court in which on action is pending may grant o stay of proceedings in a proper case, upon such terms as may be just A,n application for stay is directed to the court's sound discretion. D Britt v. Dept. 2006) _ ,4, court is ernpo'vverecj to issue e1 stoy on DepL 1990): )ternbero v. [* 3] o,,,,vn !"-Jev • • York Water Service Corporation. 94 A..D.2d 723 IT'' Dept, 1983). Discretionary stays have been issued for a host reasons. Courts have often issued stays where absent a stay halting proceedings in one action. a party would be prejudiced thereby. Britt v. International Bus Services Inc.. 255 AD.2d 143 (Is, Dept, 1998) (Court stayed civil action pending resolution of a criminal trial in order to avoid prejudice to the defendant.); Sternberg v. Dept, i 983) ~ ew York Water Service Corporation, 94 AD.2d 723 i2'd (Court stayed civil action pending the resolution of related administrative proceeding to avoid prejudice to the plaintiff.). Where the resolution of one proceeding resolves all questions in another, thereby effectively resolving the other proceeding, a stay is appropriate, Eisner v, Goldberger, 28 A.D,3d 354 ( l '' Dept. 2006): Somoza v. Pechnik, 3 A.D.3d 394 (ls, Dept. 2004): Pierre Associates Inc. V. Citizens Casualty Company of New York, 32 A.D.2d 495 (l" Dept. 1969). When the issues in a declaratory action remain unresolved, a stay of the underlying tort proceeding is appropriate pursuant to CPLR §2201. Dionisio v. Auto Hire Inc., 67 A.D.2d 996 (Td Dept. 1979). In such cases, the Court in recognition that a stay necessarily hinders the prosecution of the underlying tort action, should direct all parties to try the declaratory action with all due dispatch. Id. It is well settled that 1,nen o stay is sougrt. the proper procedure is to apply for the same in :he action 'vvhich is sought to be stayed, Grarnrnar v. Greenbaurn, r 46 A"D. ( 1'; Dept, 1911 J: [* 4] • • Qjscussion Defendants· motion seeking o stay of oil proceedings in the instant action pending the determination of the pending appeal is hereby granted. Whether to grant a stay pursuant to CPLR §5519(c) is purely within the court's sound discretion. !n deciding whether to grant a discretionary stay pending an appeal, courts often require that the pending appeal have merit. Whether the appellant stands to suffer injury in the absence of a stay is yet another factor considered by the court. An application for stay pursuant to CPLR §2201 is also directed to the court's sound discretion. Discretionary stays pursuant to CPLR § 2201 have been issued for a host reasons, such as where absent a stay halting proceedings in one action, a party would be prejudiced thereby. In this case, while it is true that defendants scarcely, if at all, articulate the merits of the pending appeal, such a failure, contrary to plaintiffs' contention, is not dispositive. In determining whether to grant a stay pursuant to CPLR §5519(c) prejudice to the appellant absent the granting of a stay is equally dispositive and such a factor is equally dispositive in determining whether to grant a stay pursuant to CPLR §2201. Insofar as the appeal herein has the potential to, if decide in aefe'1da..-,ts · favor, obviate the neea for ft:rther action by defer-dants. denial of the t oppi1cotion seeking a stay orejudice,; th2rn insofar re on cc qrcnted. it is hereby [* 5] as it forces thern to ORDERED that ail proceedings in the within action be hereby stayed until time as the Appellate Division, First Department decides defendants' apoeal of this Court's and Order, t is further ORDERED that defendants serve a copy of this Order with Notice of Entry upon ali parties within H1irty (30) days hereof, This constitutes this Court's decision and Order, Dated : May 6, 2009 Bronx, New York [* 6]

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