Lasker-Goldman Corp. v. Barnard College

Order, Supreme Court, New York County, entered on May 30, 1974, and judgment pursuant thereto entered June 3, 1974, granting plaintiff-respondent partial summary judgment and denying defendant-appellant leave to amend its answer and order, Supreme Court, New York County, entered August 5, 1974, unanimously modified in the exercise of discretion as set forth below; without costs and without disbursements, and otherwise affirmed. During oral argument counsel agreed that the pending separate and independent action brought by defendant, which is predicated on the very facts which constitute the basis for the counterclaims defendant sought to interpose, should be consolidated with the action herein and that plaintiff would withdraw its opposition to consolidation to the extent that opposition is grounded on res judicata. Since the issues in the independent action are inseparable from the plaintiff’s causes of action, execution on plaintiff’s judgment will be stayed pending resolution of the defendant’s causes of action on condition that defendant furnishes an undertaldng securing payment of plaintiff’s judgment. (Dalminter, Inc. v Dalmine, S.p.A., 29 AD2d 852; see, also, Ives v Base Lodge, 46 AD2d 622.) Settle order on notice. Concur—Markewich, J. P., Lupiano, Capozzoli, Nunez and Yesawich, JJ.