Preview:

Zelmanowicz v Feld (2006 NY Slip Op 51723(U))
[*1]


Decided on September 13, 2006
District Court of Nassau County, First District

21026/05
Randy Sue Marber, J.
Before the Court is plaintiff's motion pursuant to CPLR 2201, staying the prosecution of the trial of this action and the same is hereby granted to the extent provided herein.
Plaintiffs' complaint alleges that this action was brought against the captioned defendant, a former employee who was terminated by the plaintiffs, based upon defendant's attempt to "besmirch" plaintiffs "with the stigma of being involved in fraudulent Medicaid billing practices" (Plaintiff's Memorandum page 2). Presently plaintiff Abraham Zelmanowicz is under an indictment which alleges that plaintiffs intentionally and fraudulently submitted false Medicaid claims to the New York State Department of Health. Plaintiffs allege without opposition that "the allegations in the indictment mirror defendant's [alleged] defamation statements" at issue herein. (Id.)
file:///C|/Users/Peter/Desktop/NY/2/2006_51723.htm[4/21/2013 6:14:10 PM] Zelmanowicz v Feld (2006 NY Slip Op 51723(U))
In support of the motion plaintiffs argue that.. "[A]s a result of the pending Criminal Proceeding, Zelmanowicz will assert his Fifth Amendment right against self-incrimination by refusing to testify in the present action while the Criminal Proceeding is pending. Because Zelmanowicz's testimony is necessary indeed critical to successfully prosecuting this defamation claim, plaintiffs will be unable to effectively prosecute this action and prove all the elements of their defamation claims if Zelmanowicz asserts his constitutional right to refuse against his penal interest." (Id. at p. 5) Plaintiffs further argue any delay to the defendant in the captioned matter, is alone insufficient to deny a stay (citing Butt v. International Bus Services, Inc., 255 AD2d 143, 679 NYS2d 616 [1998]. In opposition the defendant argues prejudice in delay and that defendant "...is elderly and suffers from a medical condition which may not allow the defendant to effectively participate in the defense of this action in the future." (Affirmation in Opposition, paragraph "14").
CPLR

Download 2006_51723.pdf

New York Law