Supreme Court, Orange County, February 8, 2024

Kaufman Dolowich LLP, Woodbury, for Justin Fabricant, defendant.

Sussman & Goldman, Goshen, for plaintiff.

Law Offices of Manson and McCarthy, New York City, for 110 Grill, defendant.

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.

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 [*2]their place of employment in violation of Executive Law § 296 (verified complaint ¶ 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 § 296 (verified complaint ¶ 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 Am., Inc., 144 AD3d 1116, 1117 [2d Dept 2016], citing Burgdorf v Kasper, 83 AD3d 1553, 1556 [4th Dept 2011]; Matter of Astor, 62 AD3d 867, 868-869 [2d Dept 2009]; Britt v International Bus Servs., 255 AD2d 143, 144 [1st Dept 1998]). 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 v DeCicco, 302 AD2d 48, 53 [1st Dept 2002], citing State of New York v Carey Resources, 97 AD2d 508, 509 [2d Dept 1983], and Stuart v Tomasino, 148 AD2d 370, 373 [1st Dept 1989]). "[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 [2d Dept 2009], and Steinbrecher v Wapnick, 24 NY2d 354, 365 [1969], and citing{**82 Misc 3d at 1146} Lloyd v Catholic Charities of Diocese of Albany, 23 AD3d 783, 784 [3d Dept 2005]; Access Capital v DeCicco, 302 AD2d 48, 52-53 [1st Dept 2002]; Walden Mar. v Walden, 266 AD2d 933, 933 [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; Astor, 62 AD3d at 869; Lloyd, 23 AD3d at 784; Walden Mar., 266 AD2d at 933; 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.