Wachovia Bank, N.A., Plaintiff–Respondent, v. Harvey Silverman et al., Defendants–Appellants. (2011)

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Order, Supreme Court, New York County (Bernard J. Fried, J.), entered February 25, 2010, which, in an action seeking payment on a promissory note, denied defendants' motion to stay this action pending disposition of a related action in the Eastern District of New York (federal action), and order, same court and Justice, entered June 29, 2010, which, to the extent appealed from, granted plaintiff's motion for summary judgment in lieu of complaint, unanimously affirmed, with costs.

Supreme Court providently exercised its discretion in denying defendants' motion for a stay pending the outcome of the federal action, which was in its early stages (see CPLR 2201).   Granting the stay would have, among other things, unfairly deprived plaintiff of the speedy and efficient remedy provided by CPLR 3213 (see Banco Popular N. Am. v. Victory Taxi Mgt., 1 NY3d 381, 383 [2004] ).   Furthermore, in the federal action, the District Court deferred to Supreme Court in making the sought-after determination of plaintiff's rights under the subject note.   Supreme Court also properly granted plaintiff's motion for summary judgment in lieu of complaint.   Plaintiff established its entitlement to judgment as a matter of law by producing the promissory note allegedly executed by defendants and demonstrating that defendants failed to pay (see Solomon v. Langer, 66 AD3d 508 [2009] ).   In opposition, defendants asserted defenses that are extrinsic to the subject note and do not raise triable issues of fact (see Skilled Invs., Inc. v Bank Julius Baer & Co., Ltd., 62 AD3d 424, 425 [2009], lv dismissed 13 NY3d 934 [2010];  Richmond Plaza Assoc. v. Santucci, 192 A.D.2d 412, 412 [1993] ).   Defendants are free to continue seeking related relief in the federal action based on such extrinsic evidence.

We decline to review the denial of defendants' motion to

renew (denominated a motion to renew or reargue), which was never appealed from (see CPLR 5517[a][3],[b] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK