Conserve Power Energy, Inc. v. Abco Refrigeration Supply Corp. , 375 N.Y.S.2d 626 ( 1975 )

— In an action to recover for goods sold and delivered, in which defendant interposed counterclaims alleging, inter alia, that plaintiff owes certain moneys to it, plaintiff appeals, as limited by its brief, from so much of an order of the .Supreme Court, Suffolk County, entered June 17, 1975, as denied the branches of its motion which sought (1) summary judgment on its complaint and (2) the dismissal of defendant’s counterclaims. Order affirmed insofar as appealed from, with $50 costs and disbursements. Upon this court’s own motion, the trial of this action is stayed pending the ultimate determination of the proceedings pending in the United States District Court for the Eastern District of New York entitled Matter of Gotham Equip. Corp. (see CPLR 3211, subd [a], par 4). Until there is a final, binding adjudication that plaintiff is the alter ego of the bankrupt, Gotham Equipment Corporation, and that all of its assets are to be deemed assets of Gotham, defendant is entitled to pursue all its remedies under the Debtor and Creditor Law. However, disposition of this action necessarily requires resolution of an issue which is the subject of proceedings currently pending in the Federal court. Accordingly, we deem it appropriate that the trial of this action be stayed pending the ultimate determination of the issue in the Federal courts. Such a stay does not prejudice defendant since successful litigation of its counterclaim would result in nothing more than a setoff against plaintiff (US Code, tit 11, § 110, subd [a]). Gulotta, P. J., Rabin, Hopkins, Martuscello and Cohalan, JJ., concur.