Summary
In General Aniline Film Corp. v. Photo-Marker Corp. (28 A.D.2d 990), we directed the stay of a trial in the State court action pending litigation in the United States District Court for the Southern District of New York, upon certain conditions including the posting of a surety bond.
Summary of this case from Mackay Constr. Corp. v. Brooklyn Un. Gas Co.Opinion
October 24, 1967
Order, entered April 27, 1967, unanimously modified, on the law and on the facts, and in the exercise of discretion, without costs and disbursements, to provide that the trial of this action shall be stayed pending the determination of the action brought by defendant against plaintiff in the United States District Court for the Southern District of New York, upon condition, however, that the defendant shall within 30 days from the date of the order hereon, duly file a surety company undertaking securing the plaintiff for the payment of any judgment recovered by it upon its claim, including interest and costs; and order otherwise affirmed, without costs and disbursements. In view of the pendency of the Federal court action, the court is empowered to "make such order as justice requires" (CPLR 3211, subd. [a], par. 4). The defendant, on the basis merely of its allegations of Federal antitrust violations and unfair competition by plaintiff, should not be permitted to jeopardize or postpone indefinitely plaintiff's right to recover payment upon defendant's prima facie valid obligation to pay the agreed price of goods sold to and received by defendant. Even if the issues ultimately presented in this Supreme Court action may parallel those raised in the Federal action, there is no good reason why the parties should not proceed in the usual course to complete the pleading and pretrial procedures in this action. The parties may stipulate for consolidation or joint prosecution of the pretrial procedures in this action and in the Federal court action and, of course, the determination here is without prejudice to such proceedings at Special Term as may be deemed proper or advisable in the course of the preparation of this action for trial. If the defendant unduly delays its prosecution of the Federal court action, the plaintiff may move for a termination of the stay of the trial of this action. Settle order on notice.
Concur — Stevens, J.P., Eager, Capozzoli, Tilzer and McNally, JJ.