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Schachter v. Sofasa LLC

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


October 15, 2009

MICHAEL SCHACHTER, PLAINTIFF-APPELLANT,
v.
SOFASA LLC DOING BUSINESS AS DIAMCO TRADING CO., DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered September 30, 2008, which denied plaintiff's motion to stay enforcement of a judgment in defendant's favor entered on September 11, 2006, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Sweeny, Nardelli, Richter, Abdus-Salaam, JJ.

601646/04

The IAS court properly denied plaintiff's motion to stay enforcement of the money judgment. Plaintiff and defendant were former owners of a joint venture, Diamco Trading Co. Plaintiff sought to stay execution of the judgment pending the IAS court's determination as to whether defendant complied with the judgment's requirement that it provide an accounting of Diamco's liquidation. Since plaintiff never appealed from the judgment nor posted an undertaking, the court had no basis for staying the money judgment (see CPLR 5519[a][2]). Moreover, since the parties had agreed to arbitrate disputes regarding the dissolution of Diamco, the court properly determined that plaintiff's remedy was not to stay enforcement of the judgment, but to seek relief with respect to the accounting in the appropriate forum. The court also properly determined that plaintiff's obligation to pay the amount set forth in the money judgment was independent of and preceded defendant's obligation to provide a written accounting.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091015

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