Opinion
2014-01-16
Carol SAYRE, et al., Plaintiffs–Respondents, v. Thomas J. HOEY, Jr., Defendant–Appellant, Kitano Arms Corporation, etc., Defendant–Respondent.
Kelly, Rode and Kelly, LLP, Mineola (Donna Geoghan of counsel), for appellant. Law Offices of Michael S. Lamonsoff, PLLC, New York (Ryan Lawlor of counsel), for Carol Sayre and James Sayre, respondents.
Kelly, Rode and Kelly, LLP, Mineola (Donna Geoghan of counsel), for appellant. Law Offices of Michael S. Lamonsoff, PLLC, New York (Ryan Lawlor of counsel), for Carol Sayre and James Sayre, respondents.
Mound, Cotton Wollan & Greengrass, New York (George H. Buermann of counsel), for Kitano Arms Corporation, respondent.
Order, Supreme Court, New York County (Louis B. York, J.), entered on or about August 15, 2012, which granted plaintiff's motion to vacate a stay of the action, and order, same court and Justice, entered March 4, 2013, which denied defendant Thomas J. Hoey, Jr.'s motion to renew plaintiff's motion, unanimously affirmed, without costs.
The court properly lifted the stay of this action, which had been imposed pending the conclusion of the related criminal proceedings ( seeCPLR 2201; Britt v. International Bus Servs., 255 A.D.2d 143, 144, 679 N.Y.S.2d 616 [1st Dept.1998] ). As the court observed, there is no indication in the record that there are any criminal proceedings pending against Hoey ( see Stuart v. Tomasino, 148 A.D.2d 370, 373, 539 N.Y.S.2d 327 [1st Dept.1989] [“Even if a criminal prosecution had been pending, however, the motion court was not obligated to stay the civil matter”]; see also Fortress Credit Opportunities I LP v. Netschi, 59 A.D.3d 250, 873 N.Y.S.2d 562 [1st Dept.2009] ). The mere possibility that Hoey may be indicted in the future is an insufficient basis for an open-ended stay, especially where four years have elapsed since decedent's death and no criminal proceeding has been commenced against defendant Hoey.
Contrary to defendant's argument, notwithstanding that the stay order provided that the parties could move to lift the stay after criminal proceedings against Hoey had concluded, the court was fully empowered to vacate or modify its own order ( see Haenel v. November & November, 144 A.D.2d 298, 534 N.Y.S.2d 176 [1st Dept.1988] ). MAZZARELLI, J.P., FRIEDMAN, DeGRASSE, RICHTER, MANZANET–DANIELS, JJ., concur.