Britt v Buffalo Mun. Hous. Auth.

2009 NY Slip Op 04525 [63 AD3d 1593]

June 5, 2009

Appellate Division, Fourth Department

As corrected through Wednesday, August 5, 2009

Carmen Britt, Individually and as Executor of Lula Baity,Deceased, Appellants, v Buffalo Municipal Housing Authority et al., Respondents, et al.,Defendants.

—[*1]Glenn E. Murray, Buffalo, for plaintiff-appellant.

Colucci & Gallaher, P.C., Buffalo (John J. Marchese of counsel), for defendants-respondentsBuffalo Municipal Housing Authority, Elaine Garbe, Supervisor, Buffalo Municipal HousingAuthority and Bisilola F. Jackson, Administrator of the Estate of Jerelene Elizabeth Giwa.

Feldman, Kieffer & Herman, LLP, Buffalo (Adam C. Ferrandino of counsel), fordefendants-respondents Grace Manor Health Care Facility, Inc., David J. Gentner, MaryStephan, Kathy Randall and Tiffany Matthews.

Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered April11, 2008. The order, inter alia, granted a stay of the action pending resolution of a related federalaction.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Supreme Court providently exercised its discretion in granting the alternativerelief sought by defendants in their respective CPLR 3211 (a) (4) motions, i.e., to stay the actionpending the outcome of a related federal action (see CPLR 2201; see generally Asherv Abbott Labs., 307 AD2d 211 [2003]). A stay may be warranted based on "dueconsideration of issues of comity, orderly procedure, and judicial economy" where there issubstantial identity of the issues, relief sought, and parties in the state and federal actions (id.at 211; see Finger Lakes RacingAssn. v New York Racing Assn., 28 AD3d 1208, 1209 [2006]), and that is the casehere. Plaintiff's contention that the case should be assigned to a different justice based on thecourt's alleged bias [*2]is raised for the first time on appeal andthus is not preserved for our review (see William Kaufman Org. v Graham & James, 269AD2d 171, 174 [2000]; Ciesinski v Town of Aurora, 202 AD2d 984, 985 [1994]). In anyevent, that contention is without merit (see generally William Kaufman Org., 269 AD2dat 174). Present—Scudder, P.J., Hurlbutt, Peradotto, Green and Gorski, JJ.