Opinion
Index No. 654414/2018
04-14-2020
BENNETT CAPITAL MANAGEMENT LLC, Indio Entertainment LLC, Indio Entertainment Fund LLC, Indio Entertainment Fund 1 LLC, Vernon West, Patrick Tilley, and Palawan Investments, Plaintiffs, v. Philmore ANDERSON, Sahara Entertainment LLC, Jay Siniscalchi, JJS Entertainment LLC, Centaur Entertainment LLC, Harper Parker Entertainment Venture LLC, John and Jane Doe, Unknown Individuals, and John and Jane Doe, Unknown Entities, Defendants.
Law Offices of Donald S. Domitrz, Great Neck, NY (Donald S. Domitrz of counsel), for plaintiffs. Piliero & Associates PLLC, New York, NY (Robert D. Piliero of counsel), for defendants Philmore Anderson, Jay Siniscalchi, and JJS Entertainment LLC.
Law Offices of Donald S. Domitrz, Great Neck, NY (Donald S. Domitrz of counsel), for plaintiffs.
Piliero & Associates PLLC, New York, NY (Robert D. Piliero of counsel), for defendants Philmore Anderson, Jay Siniscalchi, and JJS Entertainment LLC.
Gerald Lebovits, J.
In this fraud and breach-of-contract action, this court previously denied in part defendants' motion to dismiss as to some of plaintiffs' claims, as asserted against some defendants. (See NYSCEF No. 80.) With respect to the remaining defendants, this court directed those defendants to file an answer responding to the remaining claims against them "within 20 days of service of a copy of this order with notice of its entry." (Id. at 8.)
Neither plaintiffs nor defendants served notice of entry. Nor did the remaining defendants file an answer. Plaintiffs now move for a default judgment against the remaining defendants, alleging that defendants failed to comply with this court's directive to file an answer. (See NYSCEF Nos. 93-94.) Defendants cross-move for a stay of proceedings in the action pending the resolution of a related, trial-ready criminal prosecution pending in the U.S. District Court for the Southern District of New York. Plaintiffs' motion is denied. Defendants' cross-motion is denied without prejudice to renewal.
There is no merit to plaintiffs' assertion that the remaining defendants failed to file timely an answer as (putatively) required by this court's order on the motion to dismiss. The order plainly reflected that defendants' time to file an answer did not run from entry of the decision and order itself on NYSCEF, but from service of a copy of the decision and order with notice of entry . (See NYSCEF No. 80 at 8; see also CPLR 2220 [distinguishing between entry of an order by the clerk and service of a copy of the order by a party]; 22 NYCRR § 202.5-b [h] [1]-[2] [same, in context of electronic filing].) Since no party served notice of entry, the period in which defendants were required to serve an answer did not begin to run. Defendants therefore did not default on their obligation to file an answer. Plaintiffs' motion for default judgment is denied.
Defendants' cross-motion asks this court to stay this action to safeguard against any infringement of defendants' Fifth Amendment right against self-incrimination in a related federal criminal matter. This motion is denied without prejudice to renewal upon resumption of normal operations in this court and the U.S. District Court for the Southern District of New York. The federal criminal trial to which defendants ask this court to defer was originally scheduled to begin on April 20, 2020. The normal operations of the state and federal courts in New York have since been heavily disrupted by the spread of COVID-19. In this court, all filings in pending non-essential matters are currently suspended by order of Chief Administrative Judge Lawrence Marks, dated March 22, 2020. (See AO/78/20.) All jury trials in the Southern District are currently suspended at least until June 1, 2020, by order of Chief Judge Colleen MacMahon, dated March 27, 2020. (See Standing Order 20-MC-172. )
A copy of this order is posted on the Southern District's COVID-19 webpage, https://nysd.uscourts.gov/covid-19-coronavirus.
Given the bar on new filings in pending actions (such as defendants' answer), further proceedings in this action are effectively on hold for the moment. The suspension of normal state and federal court operations also impairs this court's ability to assess the likely delay that would result from staying this action pending the completion of the related federal criminal trial, and thus the potential prejudice to the parties and potential for waste of judicial resources from granting or denying a stay. (See Britt v. International Bus Servs., Inc. , 255 AD2d 143, 144 [1st Dept. 1998] [discussing discretionary factors to be considered on a stay application].)
This court therefore denies defendants' stay application without prejudice to renewal once normal court operations have begun to resume and more scheduling information has become available. Should the Southern District assign a trial date to the related criminal trial before new filings are permitted in this action, defendants may notify this court of the new scheduled trial date by email sent to mhshawha@nycourts.gov and copied to all parties.
Accordingly, it is
ORDERED that plaintiffs' motion for default judgment is denied; and it is further
ORDERED that defendants' cross-motion to stay proceedings in this action is denied without prejudice.