Phan v City of New York

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Phan v City of New York 2012 NY Slip Op 30530(U) March 2, 2012 Supreme Court, New York County Docket Number: 100139/11 Judge: Barbara Jaffe Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNED ON 31612012 [* 1] *' >k Index Number : 10013912011 PART stice PHAN, STEVEN VS. INDEX NO. CITY OF NEW YORK !I SEQUENCE NUMBER : 001 MOTION DATE STAY PROCEEDINGS [BL MOTION SEQ. NO. *jY% MOTION CAL. NO. I) The fallowlng papers, numbered 1 to were read on this motlon to/for Notice of Motion/ Order to Show Cause - Affidavita - Exhibits - .. cn Y Answerlng Affldavlta - Exhibits 7 L Replylng Affldavlta 2 0 3 K Cross-Motion: ... 0 Yes (o N Upon the foregolng papers, It Is ordered that thla motlon FILED MAR 06 2012 NEW YORK COUNTY CLERK'S OFFICE Check one: NON-FI~AL DISPOSITION FINAL DISPOSITION Check if appropriate: DO NOT POST n SUBMIT ORDER/ JUDG. REFERENCE 0 SETTLE ORDER/ JUDG. [* 2] Index No. 100139/11 Plaintiff, Motion Subm.: Motion Seq. No.: 11/29/11 00 1 -against- DECISION & ORDER THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, IESHEAL ARNOLD, WILLIAM ROBBINS and DYSON WILLIAMS, FILED MAR 06 2012 NEW YORK COUNTY CLEHK'S OFFICE For plaintiff: Steven E. Millon, Esq. Jeffrey J. Shapiro & Assocs., LLC 675 Third Ave., Ste. 3005 New York, NY 10017 - 2 2 - m o 1 - . . - For City defendants: John R. Urban, ACC Michael A. Cardozo Corporation Counsel 100 Church St. N u o r k , NY 100072 12-788-0485 For AmoldiRobbins: James Michael Murphy, Esq. Montfort, Healy et al. 840 Franklin Am., PO Box 7677 Garden City, NY 11530-7677 5 I 6-747-4082 - . - . . . . .. . -- By notice of motion dated May 16) 20 11, defendants City of New York and the New York City Police Department (City, collectively) move pursuant to CPLR 220 1 and 3 101 for an order staying the trial of the instant action pending the trial of a criminal action against defendants Robbins and Williams. Plaintiff and defendants Arnold and Robbins oppose. I. PERTINENT BACKGROUND On June 22,20 10, plaintiff was allegedly injured when a motor vehicle owned by Abraham Feinberg and operated by Amy Feinberg collided with a vehicle owned by defendant Arnold and driven by either Robbins or Williams, who were then allegedly attempting to escape arrest for armed robberies they had committed hours before the accident. Plaintiff was a pedestrian; another pedestrian was killed. Following the accident, Robbins and Williams were -- - - - .. [* 3] indicted on charges related to the accident, including vehicular homicide. (Affirmation of John R. Urban, ACC, dated May 13,201 1 [Urban Aff.], Exh. A). At oral argument, the parties disclosed that the next appearance date for the criminal trial is September 14,2012, when a trial date will be set. TJ, CONTENTIONS City argues that permitting the civil action to proceed with discovery and a trial will interfere with and likely jeopardize the criminal prosecution as both arise from the same events, that discovery in the civil action may compromise the criminal case, and that Robbins and Williams may assert their fifth amendment rights against self-incrimination and thereby prejudice City s defense, City also contends that evidence in the criminal prosecution is not available to it while the prosecution pends, thereby depriving them of a competent and complete defense. (Urban Aff.). Plaintiff asserts that City s claim that the criminal prosecution will be jeopardized by permitting the civil action to go forward is fatally conclusory, and that a stay need not be granted even if a defendant is likely to exercise his fifth amendment right. (Affirmation of Steven E. Millon, Esq., dated June 8,201 1). Robbins and Williams do not object to staying the trial in this action until the criminal trial has ended, but object to staying discovery to the extent of any documents that have already been produced in the criminal action or any other discovery which will not jeopardize the criminal action. Robbins s counsel avers that Robbins will assert his fifth amendment right during his deposition while the criminal action is pending. (Affirmation of James Michael Murphy, Esq., dated June 14,2011). 2 [* 4] J11. ANALYSIS Pursuant to CPLR 2201, a court may grant a stay of a proceeding in a proper case and upon such terms as may be just. The factors to be considered in determining whether to &ranta stay of a civil action pending a criminal proceeding include: (1) avoiding the risk of inconsistent adjudications; (2) duplication of proof; and (3) potential waste of judicial resources. (Briftv I d . Bus Svcas.,Inc., 255 AD2d 143 [l*t Dept 19981). While an additional and compelling factor is whether a defendant intends to invoke his or her right against self-incrimination (Britt, 255 AD2d at 143), it is nonetheless well-settled that a party s invocation of the right against self-incrimination is generally an insufficient basis upon which to stay discovery in a civil action. (Fortress Credit Opportunities I LP v Netschi, 59 AD3d 250 [ 1It Dept 20091; Access Capital, Inc. v DeCicco, 302 AD2d 48 [1 Dept 20021; Stuart v Tornasino, 148 AD2d 370 [lstDept 19891). The determination whether to stay a civil action pending resolution of a related criminal action is directed to the court s sound discretion. ( I d ; Britt, Inc., 255 AD2d at 144). Here, City fails to specify how proceeding with discovery and a trial in the civil action will result in inconsistent adjudications, duplication of proof, or a potential waste of judicial resources. (See Mutter of Kopf, 169 AD2d 428 [lst Dept 19911 [court properly denied stay as government and corporate respondents failed to establish that permitting hearing and arbitration to proceed would jeopardize criminal investigation]). Nor has City demonstrated how Robbins s assertion of his privilege against selfincrimination will prejudice its defense here, having failed to show that Robbins s testimony is critical and necessary to its defense. (Compare Britt, 255 AD2d at 143 [where negligence action 3 [* 5] brought against defendants bus owner and driver, and driver faced criminal charges, action stayed pending resolution of criminal action as owner established that driver would invoke fifth amendment right and that driver s testimony was critical and necessary to owner s defense]). IV. CONCJ,USION Accordingly, it is hereby ORDERED, that defendants City of New York and New York City Police Department s motion for a stay is denied. ENTER: DATED: March 2,2012 New York, New York - M u 0 2 2012 4

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