Summary
In DeSiervi v. Liverzani, 136 A.D.2d 527, 523 N.Y.S.2d 147 (2nd Dept.1988) the Court upheld a stay of the action to declare the assignment of a mortgage null and void pending the resolution of the criminal action against the defendant Peter L. Cavalier. Mr. Cavalier was charged with causing a forged assignment of a mortgage to be recorded.
Summary of this case from Hempstead Hous. Auth. v. MoorerOpinion
January 11, 1988
Appeal from the Supreme Court, Westchester County (Nastasi, J.).
Ordered that the order is affirmed, with costs.
The plaintiff contends that the defendant Peter L. Cavalier, his former attorney, caused a forged assignment of a mortgage to be recorded which assigned two thirds of his interest therein to his former attorney's wife and to his accountant. As a result of the plaintiff's allegation, Mr. Cavalier has been indicted on charges relating to the forgery. Mr. Cavalier moved to stay the proceeding pending the completion of the criminal prosecution.
We find that the Supreme Court did not abuse its discretion in staying the action pending the resolution of the criminal proceeding (CPLR 2201; Bank of New York v Levy, 123 A.D.2d 589; Rye Psychiatric Hosp. Center v Doniger, 110 A.D.2d 695, lv dismissed 65 N.Y.2d 603, 784). Although the pendency of a criminal proceeding does not give rise to an absolute right under the United States or New York State Constitutions to a stay of a related civil proceeding (United States v Kordel, 397 U.S. 1; Langemyr v Campbell, 21 N.Y.2d 796, remittitur amended 21 N.Y.2d 969, rearg denied 21 N.Y.2d 1040, cert denied 393 U.S. 934), it has also been held that "[t]here is no question but that the court may exercise its discretion to stay proceedings in a civil action until a related criminal dispute is resolved. See, e.g., United States v. Kordel [supra]; De Vita v. Sills, 422 F.2d 1172" (Klitzman, Klitzman Gallagher v Krut, 591 F. Supp. 258, 269-270, n 7, affd 744 F.2d 955).
While the stay of the instant action pending the resolution of the criminal prosecution may cause inconvenience and delay to the plaintiff, the protection of Mr. Cavalier's constitutional right against self-incrimination is the more important consideration (see, Dienstag v Bronsen, 49 FRD 327). Moreover, a prior determination of the criminal action could possibly have collateral estoppel effect in the subsequent civil case and could well serve to reduce the scope of discovery and to simplify the issues therein (see, Merchants Mut. Ins. Co. v Arzillo, 98 A.D.2d 495; Texaco, Inc. v Borda, 383 F.2d 607; Clark v United States, 481 F. Supp. 1086, appeal dismissed 624 F.2d 3). In addition, plaintiff has not shown that he will be prejudiced by the stay, particularly in view of the fact that the Supreme Court has stated that it will review the status of the criminal case periodically. Mangano, J.P., Brown, Lawrence and Sullivan, JJ., concur.