Opinion
November 12, 1999
Appeals from Order of Supreme Court, Ontario County, Henry, Jr., J. — Discovery.
PRESENT: LAWTON, J. P., WISNER, PIGOTT, JR., HURLBUTT AND SCUDDER, JJ.
Order unanimously affirmed without costs.
Memorandum:
Supreme Court did not abuse its discretion in refusing to stay defendants' depositions until completion of a related criminal case (see, CPLR 2201). Defendants contend that they will be irreparably harmed if the depositions go forward because the jury in the present action will be permitted to draw a negative inference from their assertion of the privilege against self-incrimination (see, Marine Midland Bank v. Russo Produce Co., 50 N.Y.2d 31, 42-43). It is well settled, however, that the fact that a "witness may invoke the privilege against self incrimination is not a basis for precluding civil discovery" (State of New York v. Carey Resources, 97 A.D.2d 508, 509; see, Stuart v. Tomasino, 148 A.D.2d 370, 373; see also, Steinbrecher v. Wapnick, 24 N.Y.2d 354, 365, rearg denied 24 N.Y.2d 1038; Staten Island-Arlington v. Wilpon, 154 A.D.2d 589).
Defendants' reliance upon Britt v. International Bus Servs. ( 255 A.D.2d 143) is misplaced. Britt involved an essential nonparty witness who intended to invoke the privilege and had not yet been deposed. The defendants demonstrated that, without the testimony of that witness, they would be unable to assert a competent defense.
Finally, we reject defendants' contention that the court erred in determining that plaintiffs had priority in conducting examinations before trial (see, CPLR 3106 [a]).