Fourth Federal Savings & Loan Ass'n v. Garber

172 A.D.2d 399, 568 N.Y.S.2d 779, 1991 N.Y. App. Div. LEXIS 4985

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 25, 1991
• Status: Published

Opinion

Order, Supreme Court, New York County (Elliott Wilk, J.), entered July 18, 1990, granting defendant Magna Stable Co.’s motion for stay of this action until resolution of a related action pending in the same court, and denying plaintiff’s cross-motion to dismiss the other action or grant judgment on default herein, unanimously affirmed, without costs.

Underlying this mortgage foreclosure action is the viability of an agreement by Magna Stable and its president, Vincent Vinci, to assume the pre-existing mortgage in the first place. That issue is the subject of a separate action for specific performance, brought by Vinci and Magna Stable’s successor in interest, which is now pending in Supreme Court, New York County. Short of consolidation, resolution of one of these cases will aid the resolution of the other. The purpose of maintaining the status quo in the interim would be better served by staying the precipitous foreclosure action rather than interrupting the specific performance action, since resolution of the latter will more likely contribute to resolution of the former. Besides, the proper procedure for seeking a stay or dismissal of another action would be to apply to the Judge presiding over that matter (Matter of Modernismo Publs, v Tenney, 104 AD2d 721). Concur—Murphy, P. J., Wallach, Asch, Kassal and Smith, JJ.