Opinion
Index No. EF007018/2023
02-08-2024
J.F., Plaintiff, v. 110 Grill and JUSTIN FABRICANT, Defendants.
SUSSMAN & GOLDMAN Attorneys for Plaintiff LAW OFFICES OF MANSON AND MCCARTHY Attorneys for Defendant 110 Grill KAUFMAN DOLOWICH LLP Attorneys for Defendant Justin Fabricant
SUSSMAN & GOLDMAN Attorneys for Plaintiff
LAW OFFICES OF MANSON AND MCCARTHY Attorneys for Defendant 110 Grill
KAUFMAN DOLOWICH LLP Attorneys for Defendant Justin Fabricant
HON. CRAIG STEPHEN BROWN ACTING SUPREME COURT JUSTICE
Defendant Justin Fabricant moves for an order, pursuant to CPLR 2201, staying the proceedings of this action until the conclusion of Justin Fabricant's criminal proceeding.
The following papers were read:
Order to Show Cause - Keith Gutstein, Esq.'s Affirmation in Opposition - Annexed Exhibits 1 - 3
Defendant Fabricant's Memorandum of Law 4
Michael H. Sussman, Esq.'s Affirmation in Opposition 5
Upon the foregoing papers it is hereby ORDERED that the defendant Fabricant's motion to stay the proceedings of this action until the conclusion of his criminal proceedings is denied. All other requested relief is denied.
In the instant matter plaintiff J.F. alleges that defendant Fabricant sexually harassed her at their place of employment in violation of Executive Law Section 296 (Verified Complaint, paragraph 21). Plaintiff also alleges that defendant 110 Grill, the employer of both the plaintiff and defendant Fabricant, failed to implement a process for reporting and extirpating sexual harassment in violation of Executive Law Section 296 (Verified Complaint, paragraph 26). In addition, defendant Fabricant is currently being criminally prosecuted for felony sex crimes allegedly committed against the plaintiff J.F. The defendant Fabricant seeks a stay of the civil proceedings while the criminal proceedings are ongoing in order to protect his Fifth Amendment right against self-incrimination.
"A motion pursuant to CPLR 2201 to stay a civil action pending resolution of a related criminal action is directed to the sound discretion of the trial court" (Mook v. Homesafe America, Inc., 144 A.D.3d 1116, 1117 [2nd Dept., 2016] citing Burgdorf v. Kasper, 83 A.D.3d 1553, 1556, 921 N.Y.S.2d 769; Matter of Astor, 62 A.D.3d 867, 868-869, 879 N.Y.S.2d 560; Britt v. International Bus Servs., 255 A.D.2d 143, 144, 679 N.Y.S.2d 616). Further, "[i]t is settled that invoking the privilege against self-incrimination is generally an insufficient basis for precluding discovery in a civil matter" (Access Capital, Inc. v. DeCicco, 302 A.D.2d 48 [1st Dept., 2002] citing State of New York v. Care Resources, 907 A.D.2d 508, 509, 467 N.Y.S.2d 876 and Stuart v. Tomasino, 148 A.D.2d 370, 373, 539 N.Y.S.2d 327). "[W]hile courts have recognized the difficulty faced by defendants in choosing between presenting evidence in their own behalf and asserting their [constitutional] right [against self-incrimination], 'a court need not permit a defendant to avoid this difficulty by staying a civil action until a pending criminal prosecution has been terminated'" (Spencer v. City of Buffalo, 172 A.D.3d 1916, 1917 [4th Dept., 2019] quoting Matter of Astor, 62 A.D.3d 867, 869, 879 N.Y.S.2d 560 [2nd Dept., 2009] and Steinbrecher v. Wapnick, 24 N.Y.2d 354, 365, 300 N.Y.S.2d 555 [1969] and citing Lloyd v. Catholic Charities of Diocese of Albany, 23 A.D.3d 783, 784, 803 N.Y.S.2d 739 [3rd Dept., 2005]; Access Capital v. DeCicco, 302 A.D.2d 48, 52-53, 752 N.Y.S.2d 658 [1st Dept., 2002]; Walden Mar. v. Walden, 266 A.D.2d 933, 933, 698 N.Y.S.2d 185 [4th Dept., 1999]). It would be unfair and inequitable to require a plaintiff to put her case on hold while a criminal case makes its way through the criminal justice system, which often can take years. This is especially true when all defendants in the civil proceeding are not defendants in the criminal proceeding.
Since "invoking the privilege against self-incrimination is generally an insufficient basis for precluding discovery in a civil matter," the defendant Fabricant's motion must be denied (Spencer v. City of Buffalo, 172 A.D.3d 1916, 1917 [4th Dept., 2019] citing Access Capital, 302 A.D.2d at 52, 752 N.Y.S.2d 658; Astor, 62 A.D.3d at 869, 879 N.Y.S.2d 560; Lloyd, 23 A.D.3d at 784, 803 N.Y.S.2d 739; Walden Mar., 266 A.D.2d at 933, 698 N.Y.S.2d 185; see Fortress Credit Opportunities I LP v. Netschi, 59 A.D.3d 250 [1st Dept., 2009]; Galper v. Burkes, 44 A.D.3d 451 [1st Dept., 2007]). While the defendant Fabricant's motion for a complete stay is denied, this Court is cognizant of the implications involved in denying such a motion. As such, paper discovery and depositions of the plaintiff and defendant who does not have a criminal case pending, 110 Grill, must proceed. Defendant Fabricant is permitted to invoke his right against self-incrimination in answering any interrogatory that implicates such right and he need not submit to a deposition prior to June 28, 2024.
Counsel for the parties are directed to appear for a conference on May 10, 2024 at 9:30 A.M to provide a status on paper discovery, as well as the pending criminal proceeding, and to address scheduling defendant Fabricant's deposition.
The foregoing constitutes the Decision and Order of this Court.
So Ordered.