| Concord Assoc., L.P. v EPT Concord, LLC |
| 2012 NY Slip Op 09141 [101 AD3d 1574] |
| December 27, 2012 |
| Appellate Division, Third Department |
| Concord Associates, L.P., et al., Respondents, v EPTConcord, LLC, et al., Appellants. |
—[*1] DelBello, Donnellan, Weingarten, Wise & Wiederkehr, LLP, White Plains (Robert Hermannof counsel), for respondents.
Rose, J. Appeal from an order of the Supreme Court (LaBuda, J.), entered July 16, 2012 inSullivan County, which granted plaintiffs' motion for a stay of the action.
When plaintiffs, who planned to develop a casino in Sullivan County, failed to repay a loanof over $162 million from defendant EPT Concord, LLC, they transferred title to a portion oftheir real property to EPT Concord's affiliate. The parties eventually entered into a casinodevelopment agreement (hereinafter CDA) that required plaintiffs to obtain financing insubstantial conformance with a master credit agreement (hereinafter MCA). The parties alsoplaced a restrictive covenant on the portion of the property obtained by EPT Concord's affiliatethat was set to expire in December 2011 in the event that plaintiffs did not obtain the requiredfinancing. After a dispute arose regarding whether plaintiffs' proposed financing packagesatisfied the requirements of the MCA, plaintiffs commenced this suit in June 2011 fordeclaratory relief. In November 2011, plaintiffs moved to dismiss this action and filed suit inWestchester County, seeking monetary damages for defendants' alleged failure to accept theproposed financing package. Supreme Court granted plaintiffs' motion, but severed and preserveddefendants' counterclaims.
In March 2012, plaintiffs filed a federal antitrust action in the United States District Court forthe Southern District of New York (hereinafter the federal action), which, among other things,alleged anticompetitive behavior and an unlawful conspiracy on the part of defendants and thirdparties to prevent plaintiffs from fulfilling their financial obligations under the CDA and MCA inorder to prevent renewal of the restrictive covenant. In May 2012, Supreme Court (Loehr, J.)granted defendants' motion for a stay of the Westchester action pending resolution of theircounterclaims in this action and, in July 2012, Supreme Court (LaBuda, J.) granted plaintiffs'motion for a stay of this action pending resolution of the federal action. Defendants now appealfrom the order staying this action, arguing that Supreme Court abused its discretion.
This action and the related federal action are sufficiently similar that granting the stay wouldpreserve judicial resources, further the interest of justice by preventing inequitable results andpromote orderly procedure by furthering the goals of comity and uniformity (see CPLR2201; see e.g. Britt v Buffalo Mun.Hous. Auth., 63 AD3d 1593, 1593 [2009]; National Mgt. Corp. v Adolfi, 277AD2d 553, 554-555 [2000]). Although the parties and issues are not completely identical, manyof the factual issues raised in this action regarding the parties' rights and obligations under theCDA and MCA overlap with the issues in the related federal action (see Certain Underwriters at Lloyd's Londonv Pneumo Abex Corp., 36 AD3d 441, 441 [2007]; Asher v Abbott Labs., 307AD2d 211, 211-212 [2003]; Channel Master Corp. v JFD Elecs. Corp., 26 AD2d 961,961 [1966]). Furthermore, the federal antitrust claims sought to be determined in the federalaction are not determinable in the state action (see e.g. Matter of Commonwealth Elec. Inspection Servs. v Town ofClarence, 6 AD3d 1185, 1185-1186 [2004]). Accordingly, we cannot say that SupremeCourt abused its discretion in granting the stay (see Bank of N.Y. v Levy, 123 AD2d 589,590 [1986]; Research Corp. v Singer-Gen. Precision, 36 AD2d 987, 988 [1971]; cf.Kubricky Constr. Corp. v Bucon, Inc., 282 AD2d 796, 797 [2001]).
Given our decision, we will not address defendants' undecided motion for summaryjudgment on their counterclaims. Nor will we address defendants' challenge to the statement inthe order that plaintiffs were not motivated by bad faith in bringing the federal action, asdefendants concede that it is dicta and, therefore, not essential to Supreme Court's determination(see B & N Props., LLC v Elmar Assoc.,LLC, 51 AD3d 831, 832 [2008]).
Peters, P.J., Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the order is affirmed,with costs.