Gunn v. Palmieri

The plaintiffs originally commenced a RICO action, together with related State claims, in the United States District Court for the Eastern District of New York. Subsequently, in September of 1988, the plaintiffs discontinued their Federal action and, shortly thereafter, commenced a lawsuit in the Supreme Court, Richmond County, in which identical factual allegations were made. Although the plaintiffs had discontinued the Federal action and commenced the State action, they later sought to reinstate the Federal action so as to assert a RICO claim therein. The Supreme Court, Richmond County, upon the defendants’ motion, granted a stay pending the determination of the plaintiffs’ motion to reinstate the Federal action. The parties have informed this court that the United States District Court for the Eastern District has since denied the plaintiffs’ motion to reinstate.

Although we find that the granting of the stay constituted a proper exercise of discretion at the time the court considered the defendants’ motion, we conclude that, under the present circumstances, the plaintiffs are entitled to vacatur of the stay. The underlying reason for the granting of the stay was to avoid inconsistent determinations, duplication of proof, and the wasting of judicial resources (see, El Greco, Inc. v Cohn, 139 AD2d 615). Since the court has denied reinstatement, the foregoing considerations are no longer relevant as grounds for maintaining the stay. Finally, while the plaintiffs have filed a notice of appeal from the order denying reinstatement, we conclude that the interests of justice would not be served by a further stay of the action pending the appeal (see, CPLR 2201, 3211 [a] [4]).

We have reviewed the plaintiffs’ remaining contentions and find them to be without merit. Kooper, J. P., Harwood, Rosenblatt and Miller, JJ., concur.