DeSiervi v. Liverzani

• Decision Date: 11 January 1988
• Citation: 136 A.D.2d 527,523 N.Y.S.2d 147
• Court: New York Supreme Court — Appellate Division
• Parties: Arthur DeSIERVI, Appellant, v. Raymond P. LIVERZANI, et al., Defendants, Peter L. Cavalier, Respondent.

Page 147

523 N.Y.S.2d 147

136 A.D.2d 527

Arthur DeSIERVI, Appellant, v. Raymond P. LIVERZANI, et al., Defendants Peter L. Cavalier, Respondent.

Supreme Court, Appellate Division Second Department.

Jan. 11, 1988.

Rosner & Goodman, New York City (Jonathan L. Rosner, of counsel), for appellant.

Philip Irwin Aaron, P.C., Jericho (Andrew C. Morganstern, of counsel), for respondent.

Before MANGANO, J.P., and BROWN, LAWRENCE and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In an action to declare the assignment of a mortgage null and void, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), entered June 10, 1987, which granted the defendant Peter L. Cavalier's motion to stay the action pending the resolution of a criminal prosecution against him.

ORDERED that the order is affirmed, with costs.

The plaintiff contends that the defendant Peter L. Cavalier, his former attorney, caused a forged assignment of a mortgage to be recorded which assigned two-thirds of his interest therein to his former attorney's wife and to his accountant. As a result of the plaintiff's allegation, Mr. Cavalier has been indicted on charges relating to the forgery. Mr. Cavalier moved to stay the proceeding pending the completion of the criminal prosecution.

We find that the Supreme Court did not abuse its discretion in staying the action pending the resolution of the criminal proceeding (CPLR 2201; Bank of N.Y. v. Levy, 123 A.D.2d 589, 506 N.Y.S.2d 767; Rye Psychiatric Hosp. Center v. Doniger, 110 A.D.2d 695, 488 N.Y.S.2d 41, lv. dismissed 65 N.Y.2d 603, 784, 491 N.Y.S.2d 1028, 481 N.E.2d 574). Although the pendency of a criminal proceeding does not give rise to an absolute right under the United States or New York State Constitutions to a stay of a related civil proceeding ( United States v. Kordel, 397 U.S. 1, 90 S.Ct. 763, 25 L.Ed.2d 1; Langemyr v. Campbell, 21 N.Y.2d 796, 288 N.Y.S.2d 629, 235 N.E.2d 770, remittitur amended 21 N.Y.2d 969, 290 N.Y.S.2d 195, 237 N.E.2d 357, rearg. denied 21 N.Y.2d 1040, 291 N.Y.S.2d 1025, 238 N.E.2d 507 cert. denied 393 U.S. 934, 89 S.Ct. 294, 21 L.Ed.2d 271), it has also been held that "[t]here is no question but that the court may exercise its discretion to stay proceedings in a civil action until a related criminal dispute is resolved (see e.g., United States v. Kordel, [supra]; DeVita v. Sills, [3rd Cir.] 422 F.2d 1172" ( Klitzman, Klitzman & Gallagher v. Krut, 591 F.Supp. 258, 269-270, n. 7, affd. (3rd Cir.) 744 F.2d 955)).

While the stay of the instant action pending the resolution of the criminal prosecution may cause inconvenience and delay to the plaintiff, the protection of Mr. Cavalier's constitutional right against self-incrimination is the more important consideration ( see, Dienstag v. Bronsen, 49 F.R.D....