101 A.D.2d 1000 | N.Y. App. Div. | 1984
— Motion to dismiss on ground that the order and judgment appealed from have been superseded denied. Order and judgment, as amended, unanimously modified and, as modified, affirmed, with costs to defendants, in accordance with the following memorandum: Although Special Term correctly granted partial summary judgment to plaintiffs on their claim for rent under the terms of a written lease, it abused its discretion by not staying entry or execution of the judgment. Under CPLR 3212 (subd [e]) courts “have wide discretion in imposing conditions upon the grant of partial summary judgment so as to avoid possible prejudice to the party against whom that judgment is granted”. (Stigwood Organisation v Devon Co., 44 NY2d 922, 923.) To effect this result entry of summary judgment may be held in abeyance (CPLR 3212, subd [e], par 2) or execution stayed (Stigwood Organisation v Devon Co., supra). Where, as here, there are subsisting counterclaims in excess of the judgment, a stay of entry or of execution of the judgment should be granted if there exists some articulable reason for concluding that plaintiff is financially unstable and might be unable to satisfy any judgment eventually secured by the defendant (see Stigwood Organisation v Devon Co., supra; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3212:31, p 449). 11 The record shows that plaintiff Sackman-Gilliland Corp. acquired the equity of plaintiff Elda Development Corp. in the leased premises at a mortgage