SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
May 15, 1969
MAURICE A. KRISEL, RESPONDENT,
PHILLIPS PETROLEUM COMPANY, APPELLANT, ET AL., DEFENDANTS
Concur -- Capozzoli, J. P., McGivern, Nunez, Steuer and Bastow, JJ.
The defendant Phillips has demonstrated the application of the recognized canons pertaining to a stay as embraced in CPLR 3211 (subd. [a], par. 4) as also the independent power of this court to deal with parallel litigations apart from statute. (See Dresdner v. Goldman Sachs Trading Corp., 240 App. Div. 242, 244; Pollak v. Long Is. Light. Co., 246 App. Div. 765; 4 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 3211.30, p. 32-76.) The defendant Phillips appeared in the prior Federal action in 1965 and is now the sole surviving defendant therein. The subsequent New York action was not instituted until October, 1968, involving substantially the same parties and issues, save the new defendant Alcoa, on an issue not germane to Phillips. In the Federal court action, pretrial procedures have been extensively pursued; there is and has been pending since July, 1968, a motion for summary judgment, which plaintiff admits would be dispositive of the New York action. Plaintiff's attorney has offered to discontinue the Federal action if such a move would be in furtherance of the New York action, thus inferentially conceding the sameness of the two causes of action. All in all, the progression of two actions of such common identity against the same defendant in separate forums, is indefensible. Such a course would place an undue burden on Phillips and constitute a waste of judicial energies. (See Greenwich Marine v. S. S. Alexandra, 339 F. 2d 901
, 905.) Accordingly, the withholding of the requested stay as against the defendant Phillips in our courts was an improvident exercise of discretion.
Order dated January 30, 1969, unanimously modified, on the law and the facts and in the exercise of discretion, to the extent of granting a stay of the present action now pending as against the defendant Phillips Petroleum Company until the termination of the action against it in the United States District Court for the Southern District of New York, and otherwise affirmed, with $50 costs and disbursements to respondent.
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