Opinion
INDEX NO. 653787/2012 MOTION SEQ. NO. 005
11-08-2013
HOME EQUITY MORTGAGE TRUST SERIES 2006-5, et al. Plaintiff, v. DLJ MORTGAGE CAPITAL, INC., et al., Defendant.
PRESENT:
Justice
The following papers. numbered 1 to ___ were read on this motion
| PAPERS NUMBERED | |
| Notice of Motion/ Order to Show Cause ? Affidavits ? Exhibits ... | ___ |
| Answerinq Affidavits ? Exhibits | ___ |
| Replying Affidavits | ___ |
Cross-Motion: [ ] Yes [ ] No Upon the foregoing papers, it is ordered that defendants' motions, on order to show cause, for a stay of discovery pending resolution of an appeal in the separate case of Ace Sec. Corp., Home Equity Loan Trust, Series 2006-SL2 v DB Structured Prods., Inc, are denied. Although a court's decision under CPLR 2201 whether to stay proceedings is discretionary, the case law construing that section requires an identity of parties, causes of action or relief sought before a stay should be granted. See 700 Madison Partners, LLC v Hubrecht, 48 AD3d 358, 359 (1st Dept 2008); see also Hope's Windows v Albro Metal Prods. Corp., 93 AD2d 711, 712 (1st Dept 1983), lv dismissed 59 NY2d 968 (1983). Defendants have not established any of the requisite elements. In addition, "[w]hile it is true that the courts are authorized to grant a stay of proceedings where a point of law applicable to certain litigants is about to be decided by an appellate court, this should only be done where a decision is imminent. The court must take into consideration when the appeal was taken, when arguments are to be heard, and when a decision will be forthcoming." Miller v Miller, 109 Misc2d 982, 983 (NY Sup Ct 1981) (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2201:11, p 9). Defendants have not shown that the appeal in Ace Sec. Corp., Home Equity Loan Trust, Series 2006-SL2 v DB Structured Prods., Inc. will resolve a "point of law applicable" to the parties here, or that the decision would resolve this matter. Additionally, although it appears that Ace will be argued in December of this year, there is no guarantee that a decision would be "imminent."
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MELVIN L. SCHWEITZER, J.S.C.
Check one: [ ] CASE DISPOSED [v] NON -FINAL DISPOSITION
Check if appropriate: [ ] GRANTED [v] DENIED [ ] GRANTED IN PART [ ] OTHER
[ ] SETTLE ORDER [ ] SUBMIT ORDER
[ ] DO NOT POST [ ] FIDUCIARY APPT. [ ] REFERENCE