Sverdlove v. Merrill Lynch, Pierce, Fenner & Smith, Inc.

58 Misc. 2d 287, 294 N.Y.S.2d 823, 1968 N.Y. Misc. LEXIS 1170

• Court: Civil Court of the City of New York
• Decided: September 27, 1968
• Status: Published

Opinion

Charles Gold, J.

Plaintiff sues defendant for the return of a sum of money represented by a cash balance in plaintiff’s account with defendant. Defendant admits the existence and extent of the cash balance, and would consent to judgment against it for said amount if the execution thereof is stayed pending the outcome of a suit in the Supreme Court brought by defendant against plaintiff individually and in a representative capacity.

As there is no issue relating to plaintiff’s claims herein the court may not deny plaintiff summary judgment. Therefore, summary judgment is granted plaintiff in the amount admitted by defendant to represent the account balance together with interest as demanded in the complaint.

However, the court deems it fair and proper — particularly in light of the nature of the contentions advanced in the Supreme Court action by the plaintiff therein (the defendant here) and the assertion of Sverdlove’s coexecutors contained in their answer to the complaint in the Supreme Court, denying Sverdlove’s authority to open securities accounts for the estate — to stay the execution of the judgment granted herein until the final outcome of the action in the Supreme Court.

If plaintiff should be so advised he may move to vacate the stay upon a showing that defendant is not expeditiously prosecuting the Supreme Court action or that it is employing dilatory tactics therein.