Modernismo Publications, Ltd. v. Tenney

104 A.D.2d 721, 480 N.Y.S.2d 657, 1984 N.Y. App. Div. LEXIS 20140

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 21, 1984
• Status: Published

Opinion

— Petition unanimously granted, without costs, in accordance with the following memorandum: By petition pursuant to CPLR 7804 (subd [b]) and CPLR 506 (subd [b], par 1), petitioner seeks a writ of prohibition annulling and vacating a stay of a motion for consolidation pending in New York County issued by respondent as part of an order to show cause commencing a similar motion seeking consolidation and designating venue in Oneida County. Petitioner also requests this court to stay respondent from entering an order on the motion for consolidation in Oneida County until the motion for consolidation in New York County is finally determined.

The practice of applying in one action to stay the proceedings in another action, pending in a different jurisdiction, is unauthorized (see Thorne v Thorne, 203 App Div 786, 787; Belasco Co. v Klaw, 98 App Div 74; see, also, CPLR 2201; Judiciary Law, § 147-a). The proper procedure is to apply for a stay in the action sought to be stayed (see Grammer v Greenbaum, 146 App Div 3). Accordingly, the stay ordered by respondent on January 6,1984 is vacated and annulled because respondent acted in excess of his jurisdiction (see CPLR 7803, subd 2). In view of our disposition, we deny the other relief requested in the petition. — (Art 78.) Present — Dillon, P. J., Doerr, Green, Moule and Schnepp, JJ.