| Trinity Prods., Inc. v Burgess Steel LLC |
| 2005 NYSlipOp 03976 |
| May 17, 2005 |
| Appellate Division, First Department |
| Trinity Products, Inc., Appellant, v Burgess Steel LLC et al., Respondents. |
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Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered June 9, 2004, which denied plaintiff's motion to stay this action pending resolution of an action in Missouri, or, alternatively, to strike defendants' counterclaim, unanimously modified, on the law, the motion for a stay granted, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered September 27, 2004, which, to the extent appealable, denied plaintiff's motion to renew the prior motion, unanimously dismissed, without costs, as academic.
In this action to foreclose on a mechanic's lien, the court abused its discretion in failing to stay this action pending determination of a Missouri federal breach of contract action. Upon "consideration of issues of comity, orderly procedure, and judicial economy," we find "substantial identity between [the] state and federal actions" (Asher v Abbott Labs., 307 AD2d 211, 211 [2003]). The federal action was commenced first, in good faith, and has been prosecuted with due diligence; furthermore, neither party will suffer undue detriment or gain undue advantage by having that action determined first (see Kayser v Horton, 42 AD2d 839 [1973]), particularly since the Missouri action may well determine the underlying issue here as to whether the lien was wilfully exaggerated.
The counterclaim was stated with sufficient particularity to give notice of the material elements of the claim (CPLR 3013). Concur—Mazzarelli, J.P., Andrias, Saxe, Williams and Catterson, JJ.