Opinion
Index No. 100139/11
03-06-2012
STEVEN PHAN a/k/a LAT TAIPHAN, Plaintiff, v. THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, IESHEAL ARNOLD, WILLIAM ROBBINS and DYSON WILLIAMS, Defendants.
Motion Subm.: 11/29/11
Motion Seq. No.: 001
DECISION & ORDER
BARBARA JAFFE, JSC:
For plaintiff:
Steven E. Millon, Esq.
Jeffrey J. Shapiro & Assocs., LLC
For City defendants:
John R. Urban, ACC
Michael A. Cardozo
Corporation Counsel
For Arnold/Robbins:
James Michael Murphy, Esq.
Montfort, Healy et al.
By notice of motion dated May 16, 2011, defendants City of New York and the New York City Police Department (City, collectively) move pursuant to CPLR 2201 and 3101 for an order staying the trial of the instant action pending the trial of a criminal action against defendants Robbins and Williams. Plaintiff and defendants Arnold and Robbins oppose.
I. PERTINENT BACKGROUND
On June 22, 2010, plaintiff was allegedly injured when a motor vehicle owned by Abraham Feinberg and operated by Amy Feinberg collided with a vehicle owned by defendant Arnold and driven by either Robbins or Williams, who were then allegedly attempting to escape arrest for armed robberies they had committed hours before the accident. Plaintiff was a pedestrian; another pedestrian was killed. Following the accident, Robbins and Williams were indicted on charges related to the accident, including vehicular homicide. (Affirmation of John R. Urban, ACC, dated May 13, 2011 [Urban Aff.], Exh. A). At oral argument, the parties disclosed that the next appearance date for the criminal trial is September 14, 2012, when a trial date will be set.
II. CONTENTIONS
City argues that permitting the civil action to proceed with discovery and a trial will interfere with and likely jeopardize the criminal prosecution as both arise from the same events, that discovery in the civil action may compromise the criminal case, and that Robbins and Williams may assert their fifth amendment rights against self-incrimination and thereby prejudice City's defense. City also contends that evidence in the criminal prosecution is not available to it while the prosecution pends, thereby depriving them of a competent and complete defense. (Urban Aff.).
Plaintiff asserts that City's claim that the criminal prosecution will be jeopardized by permitting the civil action to go forward is fatally conclusory, and that a stay need not be granted even if a defendant is likely to exercise his fifth amendment right. (Affirmation of Steven E. Millon, Esq., dated June 8, 2011).
Robbins and Williams do not object to staying the trial in this action until the criminal trial has ended, but object to staying discovery to the extent of any documents that have already been produced in the criminal action or any other discovery which will not jeopardize the criminal action. Robbins's counsel avers that Robbins will assert his fifth amendment right during his deposition while the criminal action is pending. (Affirmation of James Michael Murphy, Esq., dated June 14, 2011).
III. ANALYSIS
Pursuant to CPLR 2201, a court may grant a stay of a proceeding in a proper case and upon such terms as may be just. The factors to be considered in determining whether to grant a stay of a civil action pending a criminal proceeding include: (1) avoiding the risk of inconsistent adjudications; (2) duplication of proof; and (3) potential waste of judicial resources. (Britt v Intl. Bus Svces., Inc., 255 AD2d 143 [1st Dept 1998]).
While an additional and compelling factor is whether a defendant intends to invoke his or her right against self-incrimination (Britt, 255 AD2d at 143), it is nonetheless well-settled that a party's invocation of the right against self-incrimination is generally an insufficient basis upon which to stay discovery in a civil action. (Fortress Credit Opportunities I LP v Netschi, 59 AD3d 250 [1" Dept 2009]; Access Capital, Inc. v DeCicco, 302 AD2d 48 [1" Dept 2002]; Stuart v Tomasino, 148 AD2d 370 [1st Dept 1989]). The determination whether to stay a civil action pending resolution of a related criminal action is directed to the court's sound discretion. (Id.; Britt, Inc., 255 AD2d at 144).
Here, City fails to specify how proceeding with discovery and a trial in the civil action will result in inconsistent adjudications, duplication of proof, or a potential waste of judicial resources. (See Matter of Kopf, 169 AD2d 428 [1st Dept 1991] [court properly denied stay as government and corporate respondents failed to establish that permitting hearing and arbitration to proceed would jeopardize criminal investigation]).
Nor has City demonstrated how Robbins's assertion of his privilege against self-incrimination will prejudice its defense here, having failed to show that Robbins's testimony is critical and necessary to its defense. (Compare Britt, 255 AD2d at 143 [where negligence action brought against defendants bus owner and driver, and driver faced criminal charges, action stayed pending resolution of criminal action as owner established that driver would invoke fifth amendment right and that driver's testimony was critical and necessary to owner's defense]).
IV. CONCLUSION
Accordingly, it is hereby
ORDERED, that defendants City of New York and New York City Police Department's motion for a stay is denied.
ENTER:
__________________
Barbara Jaffe, JSC:
DATED: March 2, 2012
New York, New York