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Britt v. Buffalo Municipal Housing Authority

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


June 5, 2009

CARMEN BRITT AND CARMEN BRITT, AS EXECUTOR OF THE ESTATE OF LULA BAITY, DECEASED, PLAINTIFFS-APPELLANTS,
v.
BUFFALO MUNICIPAL HOUSING AUTHORITY, ELAINE GARBE, SUPERVISOR, BUFFALO MUNICIPAL HOUSING AUTHORITY, BISILOLA F. JACKSON, ADMINISTRATOR OF THE ESTATE OF JERELENE ELIZABETH GIWA, GRACE MANOR HEALTH CARE FACILITY, INC., DAVID J. GENTNER, MARY STEPHAN, KATHY RANDALL, TIFFANY MATTHEWS, PHILLIP J. RADOS, M.D., DEFENDANTS-RESPONDENTS, ET AL., DEFENDANTS.

Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered April 11, 2008. The order, inter alia, granted a stay of the action pending resolution of a related federal action.

PRESENT: SCUDDER, P.J., HURLBUTT, PERADOTTO, GREEN, AND GORSKI, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum

Supreme Court providently exercised its discretion in granting the alternative relief sought by defendants in their respective CPLR 3211 (a) (4) motions, i.e., to stay the action pending the outcome of a related federal action (see CPLR 2201; see generally Asher v Abbott Labs., 307 AD2d 211). A stay may be warranted based on "due consideration of issues of comity, orderly procedure, and judicial economy" where there is substantial identity of the issues, relief sought, and parties in the state and federal actions (id. at 211; see Finger Lakes Racing Assn. v New York Racing Assn., 28 AD3d 1208, 1209), and that is the case here. Plaintiffs' contention that the case should be assigned to a different justice based on the court's alleged bias is raised for the first time on appeal and thus is not preserved for our review (see William Kaufman Org. v Graham & James, 269 AD2d 171, 174; Ciesinski v Town of Aurora, 202 AD2d 984, 985). In any event, that contention is without merit (see generally William Kaufman Org., 269 AD2d at 174).

20090605

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