Gunn v. Palmieri

Appellate Division of the Supreme Court of New York

Gunn v. Palmieri

158 A.D.2d 671, 552 N.Y.S.2d 129, 1990 N.Y. App. Div. LEXIS 2296

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 26, 1990

StatusPublished

This text of 158 A.D.2d 671 (Gunn v. Palmieri) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gunn v. Palmieri, 158 A.D.2d 671, 552 N.Y.S.2d 129, 1990 N.Y. App. Div. LEXIS 2296 (N.Y. Ct. App. 1990).

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Opinion

The plaintiffs originally commenced a RICO action, together with related State claims, in the United States District Court for the Eastern District of New York. Subsequently, in September of 1988, the plaintiffs discontinued their Federal action and, shortly thereafter, commenced a lawsuit in the Supreme Court, Richmond County, in which identical factual allegations were made. Although the plaintiffs had discontinued the Federal action and commenced the State action, they later sought to reinstate the Federal action so as to assert a RICO claim therein. The Supreme Court, Richmond County, upon the defendants’ motion, granted a stay pending the determination of the plaintiffs’ motion to reinstate the Federal action. The parties have informed this court that the United States District Court for the Eastern District has since denied the plaintiffs’ motion to reinstate.

Although we find that the granting of the stay constituted a proper exercise of discretion at the time the court considered the defendants’ motion, we conclude that, under the present circumstances, the plaintiffs are entitled to vacatur of the stay. The underlying reason for the granting of the stay was to avoid inconsistent determinations, duplication of proof, and the wasting of judicial resources (see, El Greco, Inc. v Cohn, 139 AD2d 615). Since the court has denied reinstatement, the foregoing considerations are no longer relevant as grounds for maintaining the stay. Finally, while the plaintiffs have filed a notice of appeal from the order denying reinstatement, we conclude that the interests of justice would not be served by a further stay of the action pending the appeal (see, CPLR 2201, 3211 [a] [4]).

[673]*673We have reviewed the plaintiffs’ remaining contentions and find them to be without merit. Kooper, J. P., Harwood, Rosenblatt and Miller, JJ., concur.

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The plaintiffs originally commenced a RICO action, together with related State claims, in the United States District Court for the Eastern District of New York. Subsequently, in September of 1988, the plaintiffs discontinued their Federal action and, shortly thereafter, commenced a lawsuit in the Supreme Court, Richmond County, in which identical factual allegations were made. Although the plaintiffs had discontinued the Federal action and commenced the State action, they later sought to reinstate the Federal action so as to assert a RICO claim therein. The Supreme Court, Richmond County, upon the defendants’ motion, granted a stay pending the determination of the plaintiffs’ motion to reinstate the Federal action. The parties have informed this court that the United States District Court for the Eastern District has since denied the plaintiffs’ motion to reinstate.

Although we find that the granting of the stay constituted a proper exercise of discretion at the time the court considered the defendants’ motion, we conclude that, under the present circumstances, the plaintiffs are entitled to vacatur of the stay. The underlying reason for the granting of the stay was to avoid inconsistent determinations, duplication of proof, and the wasting of judicial resources (see, El Greco, Inc. v Cohn, 139 AD2d 615). Since the court has denied reinstatement, the foregoing considerations are no longer relevant as grounds for maintaining the stay. Finally, while the plaintiffs have filed a notice of appeal from the order denying reinstatement, we conclude that the interests of justice would not be served by a further stay of the action pending the appeal (see, CPLR 2201, 3211 [a] [4]).

[673]*673We have reviewed the plaintiffs’ remaining contentions and find them to be without merit. Kooper, J. P., Harwood, Rosenblatt and Miller, JJ., concur.

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158 A.D.2d 671, 552 N.Y.S.2d 129, 1990 N.Y. App. Div. LEXIS 2296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gunn-v-palmieri-nyappdiv-1990.

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