Summary
In Matter of Modernismo Publications, Ltd. v Tenney (104 AD2d 721, 721 [4th Dept 1984]), the court stated, "The practice of applying in one action to stay the proceedings in another action, pending in a different jurisdiction, is unauthorized."
Summary of this case from Liberty Mut. Ins. Co. v. HendersonOpinion
September 21, 1984
Present — Dillon, P.J., Doerr, Green, Moule and Schnepp, JJ.
Petition unanimously granted, without costs, in accordance with the following memorandum: By petition pursuant to CPLR 7804 (subd [b]) and CPLR 506 (subd. [b], par 1), petitioner seeks a writ of prohibition annulling and vacating a stay of a motion for consolidation pending in New York County issued by respondent as part of an order to show cause commencing a similar motion seeking consolidation and designating venue in Oneida County. Petitioner also requests this court to stay respondent from entering an order on the motion for consolidation in Oneida County until the motion for consolidation in New York County is finally determined.
The practice of applying in one action to stay the proceedings in another action, pending in a different jurisdiction, is unauthorized (see Thorne v Thorne, 203 App. Div. 786, 787; Belasco Co. v Klaw, 98 App. Div. 74; see, also, CPLR 2201; Judiciary Law, § 147-a). The proper procedure is to apply for a stay in the action sought to be stayed (see Grammer v Greenbaum, 146 App. Div. 3). Accordingly, the stay ordered by respondent on January 6, 1984 is vacated and annulled because respondent acted in excess of his jurisdiction (see CPLR 7803, subd. 2). In view of our disposition, we deny the other relief requested in the petition. — (Art 78.)