Kwiatkowski v. National Student Marketing Corp.

Appellate Division of the Supreme Court of New York

Kwiatkowski v. National Student Marketing Corp.

85 A.D.2d 559, 445 N.Y.S.2d 703, 1981 N.Y. App. Div. LEXIS 16350

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

DecidedDecember 17, 1981

StatusPublished

This text of 85 A.D.2d 559 (Kwiatkowski v. National Student Marketing Corp.) 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.

Bluebook

Kwiatkowski v. National Student Marketing Corp., 85 A.D.2d 559, 445 N.Y.S.2d 703, 1981 N.Y. App. Div. LEXIS 16350 (N.Y. Ct. App. 1981).

Pincite

Opinions

Order, Supreme Court, New York County (Shainswit, J.), entered March 13,1981, granting plaintiff’s motion to vacate a prior stay of this action and denying plaintiff’s motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, with costs and disbursements, plaintiff’s motion to vacate the prior stay is denied and plaintiff’s motion for partial summary judgment is dismissed on this basis, to wit, the continuance of the stay. By prior order, entered August 5, 1975, Special Term stayed the prosecution of the instant action pending disposition of the consolidated actions pending in the Federal courts with leave to plaintiff “to move to vacate the stay upon proper showing that plaintiff has been unduly prejudiced by any subsequent developments in the said actions”. We affirmed [560]*560such order (54 AD2d 845). Special Term now vacates this stay solely on the basis that “more than five years have passed without resolution of the federal actions, and plaintiff should not be further delayed from pursuing his rights in this forum based upon state causes of action.” None of the circumstances underlying Special Term’s prior order imposing the stay have substantially changed and plaintiff has not sufficiently demonstrated that he has been unduly prejudiced. Although the Federal actions may have taken longer than originally contemplated, plaintiff is a party to those actions which are now nearing disposition. Vacatur of the stay poses the threat of duplicative litigation and inconsistent determinations. Plaintiff’s desire to have the State court pass upon the liability issue prior to the Federal courts is not a sufficient reason to vacate the stay. Accordingly, Special Term also erred in considering plaintiff’s motion for partial summary judgment and denying same because of sharp factual disputes, as the stay of this action prevented such consideration and mandated dismissal of such motion. The condition affecting the original stay, which is reinstated by our determination, continues, to wit, that such stay is “with leave to move to vacate the stay upon proper showing that plaintiff has been unduly prejudiced by any subsequent developments in the [Federal] actions”. Concur — Murphy, P. J., Sandler, Markewich and Lupiano, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order, Supreme Court, New York County (Shainswit, J.), entered March 13,1981, granting plaintiff’s motion to vacate a prior stay of this action and denying plaintiff’s motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, with costs and disbursements, plaintiff’s motion to vacate the prior stay is denied and plaintiff’s motion for partial summary judgment is dismissed on this basis, to wit, the continuance of the stay. By prior order, entered August 5, 1975, Special Term stayed the prosecution of the instant action pending disposition of the consolidated actions pending in the Federal courts with leave to plaintiff “to move to vacate the stay upon proper showing that plaintiff has been unduly prejudiced by any subsequent developments in the said actions”. We affirmed [560]*560such order (54 AD2d 845). Special Term now vacates this stay solely on the basis that “more than five years have passed without resolution of the federal actions, and plaintiff should not be further delayed from pursuing his rights in this forum based upon state causes of action.” None of the circumstances underlying Special Term’s prior order imposing the stay have substantially changed and plaintiff has not sufficiently demonstrated that he has been unduly prejudiced. Although the Federal actions may have taken longer than originally contemplated, plaintiff is a party to those actions which are now nearing disposition. Vacatur of the stay poses the threat of duplicative litigation and inconsistent determinations. Plaintiff’s desire to have the State court pass upon the liability issue prior to the Federal courts is not a sufficient reason to vacate the stay. Accordingly, Special Term also erred in considering plaintiff’s motion for partial summary judgment and denying same because of sharp factual disputes, as the stay of this action prevented such consideration and mandated dismissal of such motion. The condition affecting the original stay, which is reinstated by our determination, continues, to wit, that such stay is “with leave to move to vacate the stay upon proper showing that plaintiff has been unduly prejudiced by any subsequent developments in the [Federal] actions”. Concur — Murphy, P. J., Sandler, Markewich and Lupiano, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

85 A.D.2d 559, 445 N.Y.S.2d 703, 1981 N.Y. App. Div. LEXIS 16350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kwiatkowski-v-national-student-marketing-corp-nyappdiv-1981.