Defendant Justin Fabricant moves for an order, pursuant to CPLR 2201, staying the proceedings of this action until the conclusion of Justin Fabricant’s criminal proceeding. The following papers were read: Order to Show Cause — Keith Gutstein, Esq.’s Affirmation in Opposition — Annexed Exhibits 1-3 Defendant Fabricant’s Memorandum of Law 4 Michael H. Sussman, Esq.’s Affirmation in Opposition 5 DECISION & ORDER Upon the foregoing papers it is hereby ORDERED that the defendant Fabricant’s motion to stay the proceedings of this action until the conclusion of his criminal proceedings is denied. All other requested relief is denied. In the instant matter plaintiff J.F. alleges that defendant Fabricant sexually harassed her at their place of employment in violation of Executive Law Section 296 (Verified Complaint, paragraph 21). Plaintiff also alleges that defendant 110 Grill, the employer of both the plaintiff and defendant Fabricant, failed to implement a process for reporting and extirpating sexual harassment in violation of Executive Law Section 296 (Verified Complaint, paragraph 26). In addition, defendant Fabricant is currently being criminally prosecuted for felony sex crimes allegedly committed against the plaintiff J.F. The defendant Fabricant seeks a stay of the civil proceedings while the criminal proceedings are ongoing in order to protect his Fifth Amendment right against self-incrimination. “A motion pursuant to CPLR 2201 to stay a civil action pending resolution of a related criminal action is directed to the sound discretion of the trial court” (Mook v. Homesafe America, Inc., 144 AD3d 1116, 1117 [2nd Dept., 2016] citing Burgdorf v. Kasper, 83 AD3d 1553, 1556, 921 NYS2d 769; Matter of Astor, 62 AD3d 867, 868-869, 879 NYS2d 560; Britt v. International Bus Servs., 255 AD2d 143, 144, 679 NYS2d 616). Further, “[i]t is settled that invoking the privilege against self-incrimination is generally an insufficient basis for precluding discovery in a civil matter” (Access Capital, Inc. v. DeCicco, 302 AD2d 48 [1st Dept., 2002] citing State of New York v. Care Resources, 907 AD2d 508, 509, 467 NYS2d 876 and Stuart v. Tomasino, 148 AD2d 370, 373, 539 NYS2d 327). “[W]hile courts have recognized the difficulty faced by defendants in choosing between presenting evidence in their own behalf and asserting their [constitutional] right [against self-incrimination], ‘a court need not permit a defendant to avoid this difficulty by staying a civil action until a pending criminal prosecution has been terminated’” (Spencer v. City of Buffalo, 172 AD3d 1916, 1917 [4th Dept., 2019] quoting Matter of Astor, 62 AD3d 867, 869, 879 NYS2d 560 [2nd Dept., 2009] and Steinbrecher v. Wapnick, 24 NY2d 354, 365, 300 NYS2d 555 [1969] and citing Lloyd v. Catholic Charities of Diocese of Albany, 23 AD3d 783, 784, 803 NYS2d 739 [3rd Dept., 2005]; Access Capital v. DeCicco, 302 AD2d 48, 52-53, 752 NYS2d 658 [1st Dept., 2002]; Walden Mar. v. Walden, 266 AD2d 933, 933, 698 NYS2d 185 [4th Dept., 1999]). It would be unfair and inequitable to require a plaintiff to put her case on hold while a criminal case makes its way through the criminal justice system, which often can take years. This is especially true when all defendants in the civil proceeding are not defendants in the criminal proceeding. Since “invoking the privilege against self-incrimination is generally an insufficient basis for precluding discovery in a civil matter,” the defendant Fabricant’s motion must be denied (Spencer v. City of Buffalo, 172 AD3d 1916, 1917 [4th Dept., 2019] citing Access Capital, 302 AD2d at 52, 752 NYS2d 658; Astor, 62 AD3d at 869, 879 NYS2d 560; Lloyd, 23 AD3d at 784, 803 NYS2d 739; Walden Mar., 266 AD2d at 933, 698 NYS2d 185; see Fortress Credit Opportunities I LP v. Netschi, 59 AD3d 250 [1st Dept., 2009]; Galper v. Burkes, 44 AD3d 451 [1st Dept., 2007]). While the defendant Fabricant’s motion for a complete stay is denied, this Court is cognizant of the implications involved in denying such a motion. As such, paper discovery and depositions of the plaintiff and defendant who does not have a criminal case pending, 110 Grill, must proceed. Defendant Fabricant is permitted to invoke his right against self-incrimination in answering any interrogatory that implicates such right and he need not submit to a deposition prior to June 28, 2024. Counsel for the parties are directed to appear for a conference on May 10, 2024 at 9:30 A.M to provide a status on paper discovery, as well as the pending criminal proceeding, and to address scheduling defendant Fabricant’s deposition. The foregoing constitutes the Decision and Order of this Court. So Ordered. Dated: February 8, 2024
