New York State Court of Claims

New York State Court of Claims

CAB ASSOCIATES v. THE STATE OF NEW YORK, #2004-033-056, Claim No. 101711, Motion No. M-67835


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Tunstead, Schechter & Czik, LLPBy: Marvin Schechter, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Arthur Patane, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 31, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim for breach of contract brought by CAB Associates (hereinafter "claimant") based upon a contract entered into on or about May 12, 1993, between claimant and the defendant through the New York State Department of Transportation. The contract is known as Contract No. D254551, F.A. Project No. 117-4200-305, for the Replacement of Beach Lane Bridge over Quantuck Canal, Westhampton, New York. The facts surrounding the controversy have been previously recounted by the Honorable Francis T. Collins in a Decision and Order filed on June 12, 2003 (M-66104).

Defendant previously moved for summary judgment dismissing the third, fourth, fifth, sixth, seventh and eighth causes of action. By the above-mentioned decision and order, Judge Collins denied defendant's motion in its entirety. Defendant now seeks a stay of the trial of this action pending an appeal of the decision and order denying defendant's motion.[1] Defendant's argument for a stay is twofold. First, defendant asks the Court to stay the proceedings pursuant to CPLR 2201. Defendant argues that a trial would be a waste of judicial time, as well as a waste of time and resources of the parties while the appeal is open. Second, defendant contends that CPLR 5519(a) provides an automatic stay in this matter.

Claimant opposes defendant's motion stating that defendant's appeal is without merit.

CPLR 5519(a) states:
(a) Stay without court order. Service upon the adverse party of a notice of appeal or an affidavit of intention to move for permission to appeal stays all proceedings to enforce the judgment or order appealed from pending the appeal or determination on the motion for permission to appeal where:

1. the appellant or moving party is the state or any political subdivision of the state or any officer or agency of the state or of any political subdivision of the state; provided that where a court, after considering an issue specified in question four of section seventy-eight hundred three of this chapter, issues a judgment or order directing reinstatement of a license held by a corporation with no more than five stockholders and which employs no more than ten employees, a partnership with no more than five partners and which employs no more than ten employees, a proprietorship or a natural person, the stay provided for by this paragraph shall be for a period of fifteen days.

In Pickerell v Town of Huntington, 219 AD2d 24, the Second Department decided a case similar to the instant matter. Plaintiff and defendant each moved for partial summary judgment. The trial court granted plaintiff's motion and ordered that the parties proceed to trial on the issue of damages. The Second Department held that CPLR 5519(a) automatically stayed the trial.

In the present case, the denial of defendant's motion for summary judgment has the effect of ordering this matter to trial. As such, the Court finds that CPLR 5519(a) applies in this matter and automatically stays the trial. In addition, the Court, pursuant to CPLR 2201, finds that the parties and the interests of judicial economy would be better served in having the appeal decided prior to proceeding to trial.

Accordingly, defendant's motion for a stay of the trial is granted.

March 31, 2004
Hauppauge, New York

Judge of the Court of Claims

[1]The following papers have been read and considered on defendant's motion for a stay of the trial of this action: Notice of Motion for Stay of Trial dated December 22, 2003 and filed December 24, 2003; Affidavit of Arthur Patane, Esq. with annexed Exhibits A-B sworn to December 22, 2003 and filed December 24, 2003; Affidavit in Opposition of Marvin Schechter, Esq. sworn to January 27, 2004 and filed January 28, 2004.