Third-Party Defendant moves to stay the further prosecution of this action pending the resolution of mortgage foreclosure actions presently pending in Supreme Court, Queens County.

In or about April 2004, USA Mortgage Bankers of America, Inc. ("USA Mortgage") made loans to Taipei Realty Corp. ("Taipei") and Y & Development Corp. ("Development") that were secured by mortgages on real property owned by Taipei and Development.

Commonwealth Land Title Insurance Company ("Commonwealth") issued title insurances policy on each of the properties.

Shortly after the closing, USA Mortgage assigned the mortgages to Greenpoint Mortgage Funding, Inc. ("Greenpoint").

In January 2005, after defaults in payment on the mortgages, Greenpoint commenced foreclosure actions against Taipei and Development in Supreme Court, Queens County ("Foreclosure Actions"). Venue of the foreclosure actions was laid in Queens County because the real property is located in Queens County. CPLR 507.

In each of the foreclosure actions, the defaulting mortgagor interposed an answer alleging that the signatures on the mortgage documents were forgeries. The answers interposed by Taipei and Development in the Foreclosure Actions seek to declare the mortgages null and void.

Upon receipt of the answer, Greenpoint tendered the matter to Commonwealth demanding a defense on the counterclaim/affirmative defense of forgery and seeking indemnity for any losses resulting from the mortgages being declared void. Greenpoint's demand was based upon the provisions of the title insurance policy that provided that Commonwealth would insure against any loss or damage resulting from any defect in title or invalidity or unenforceability of the lien of the mortgage. The title insurance policy also required Commonwealth to pay any costs, legal fees or expenses Greenpoint incurred in defending title or the validity of the lien of the mortgage.

Commonwealth refused to provide Greenpoint with a defense or to indemnify Greenpoint.

As a result, Greenpoint commenced this action seeking a declaratory judgment declaring that Commonwealth was obligated to indemnify Greenpoint for any loss incurred as a result of the invalidity of the mortgage and to indemnify Greenpoint for [*2]costs incurred in defending the claims regarding the validity of the mortgages.

Commonwealth commenced the third-party action seeking indemnification from USA Mortgage for any sums Commonwealth is required to pay Greenpoint. Commonwealth alleges the mortgages were originated by USA Mortgage on behalf of Greenpoint. Commonwealth further alleges that the individual at USA Mortgage who handled these mortgages was aware of the fact that the signatures on the mortgage documents were forgeries and knowingly concealed this information from Commonwealth.

Discovery is proceeding in this action. Depositions have not been held.

Discovery in the Foreclosure Action was supposed to have been completed by November 17, 2006. Dispositive motions in the Foreclosure Actions should have been served by February 2, 2007.

USA Mortgage moves to stay prosecution of this action pending the resolution of the Foreclosure Actions. USA Mortgage asserts that if Greenpoint prevails in the foreclosure actions, this action may be rendered moot.

CPLR 2201 permits the court to stay an action in a proper case upon such terms as may be just. An application for a stay is one addressed to the discretion of the trial court. Research Corp. v. Singer-General Precision, Inc., 36 AD2d 987 (3rd Dept. 1976).

A stay of one action pending the resolution of another action is appropriate when the determination of one action will result in the resolution of both actions. Somoza v. Pechnik, 3 AD3d 394 (1st Dept. 2004); and Kubricky Construction v. Bucon, Inc., 282 AD2d 796 (3rd Dept. 2001). To obtain a stay, the party seeking a stay must generally establish a complete identity of parties, causes of action and judgment sought. See, Somoza v. Pechnik, supra; and Pierre Assocs. Inc. v. Citizens Casualty Co. of New York, 32 AD2d 495 (1st Dept. 1969).

While the parties to this action and the parties to the Foreclosure Actions are not the same, the disposition of the Foreclosure Actions will have a significant impact on the resolution of this action. That is, if Greenpoint prevails in the Foreclosure Actions, the only issue that might remain in this case is Commonwealth's obligation to pay the legal fee's Greenpoint incurred in connection with the defense of the counterclaims and affirmative defenses in the Foreclosure Actions. Even this issue may not have to be heard by this Court.

While this Court has not been provided with copies of the mortgage notes and/or mortgages that give rise to the Foreclosure Actions, mortgage notes and mortgages usually contain a provision which requires the mortgagor to pay the mortgagee's legal fees and expenses should the mortgagee successfully prosecute an action to enforce its rights on the note or mortgage. Under such a provision, should Greenpoint prevail in the Foreclosure Actions, Greenpoint could, and probably would, recover from Taipei and/or Development the legal fees it seeks to compel Commonwealth to pay.

Additionally, there are significant questions of ripeness in regard the declaratory judgment action. The granting of a declaratory judgment is discretionary. CPLR 3001. The court may decline to hear an action for declaratory judgment if the parties have other adequate remedies available. Matter of Morgenthau v. Erlbaum, 59 NY2d 143, cert. den., 464 U.S. 993 (1983); and Gaynor v. Rockefeller, 15 NY2d 120 (1965). See also, Holtzman v. The Supreme [*3]Court of the State of New York, 152 AD2d 724 (2nd Dept. 1989); and Bartley v. Walentas, 78 AD2d 310 (1st Dept. 1980). The court should not grant declaratory relief where it will result in the piecemeal resolution of the dispute. City of Rochester v. Vanderlinde Electric Corp., 56 AD2d 185 (4th Dept. 1977).

An adjudication of Greenpoint's rights under the title insurance policies issued by Commonwealth will not fully resolve the dispute between Commonwealth and Greenpoint in regard to the properties that are subject of the Foreclosure Actions. If Greenpoint prevails in this action but does not prevail in the Foreclosure Actions, Greenpoint will have to return to this Court for a determination of the damages it is entitled to recover under the terms of the title insurance policies.

Commonwealth further asserts that Greenpoint does not presently have the right to proceed against it based upon the express terms of the title insurance policies. Commonwealth asserts it has no liability for damages until there has been a final adjudication by a court of competent jurisdiction and on all appeals taken therefrom adverse to title or the lien of the mortgage insured under the title insurance policy it issued. Thus, Commonwealth's contractual obligations to Greenpoint under the title insurance policy cannot be determined until there has been an adjudication in the Foreclose Actions that the mortgages are unenforceable.

Since it appears that most, if not all, of the issues that will be adjudicated in this action will be significantly affected, if not resolved, in the disposition of the Foreclosure

Actions, this Court believes a stay of this action pending a final resolution of the Foreclosure Actions is appropriate.

Accordingly, it is,

ORDERED, that Third-party Defendant's motion to stay the prosecution of this action is granted. Further prosecution of this action and all discovery in this action is hereby stayed pending the final disposition of the Foreclosure Actions in Queens County; and it is further,

ORDERED, that counsel for the parties are directed to promptly advise this Court of the determination of the Foreclosure Actions and, if they are not decided, participate in a telephone conference on July 13, 2007 at 3:00 p.m. to advise as to the status of the Foreclosure Actions.

This constitutes the decision and Order of the Court.

Dated: Mineola, NY_____________________________

February 5, 2007Hon. LEONARD B. AUSTIN, J.S.C.