Lawler v. TropWorld Casino & Entertainment Resort

238 A.D.2d 383, 657 N.Y.S.2d 360, 1997 N.Y. App. Div. LEXIS 3816

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 14, 1997
• Status: Published

Opinion

—In a negligence action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered February 5, 1996, which denied their motion pursuant to CPLR 3211 (a) (4) to stay the action.

Ordered that the order is reversed, on the law, the motion is granted, and the action is stayed.

The plaintiff, John E. Lawler, allegedly sustained injuries when a poolside chair at the defendant TropWorld Casino and Entertainment Resort (hereinafter TropWorld) in Atlantic City collapsed. He and his wife commenced an action in New Jersey (hereinafter the New Jersey action) against, inter alia, the defendants in the instant action, TropWorld and Aztar Corporation. Service of the summons and complaint in the New Jersey action was made on August 22, 1995. The defendants answered the complaint in the New Jersey action, and asserted, as part of their answer, that they lacked knowledge or information sufficient to state a belief as to the ownership and/or management of TropWorld, or of their own corporate status. In November 1995 the plaintiff served the defendants with a summons with notice in the instant action (hereinafter the New York action), and the defendants moved to stay the prosecution of the New York action. We reverse.

Where there is a prior action pending in another State and there is a question as to whether the parties can be afforded full relief therein, the preferred course is to stay the New York action pending a final determination of the prior action (see, SafeCard Servs. v American Express Travel Related Servs. Co., 203 AD2d 65; Flintkote Co. v American Mut. Liab. Ins. Co., 103 AD2d 501, affd 67 NY2d 857, on opn at App Div). The record here demonstrates the existence of such a factual question and, consequently, the prosecution of the New York action must be stayed pending a final resolution of the prior New Jersey action. Bracken, J. P., Pizzuto, Florio and McGinity, JJ., concur.