D&D Realty, Inc. v. Lionel Corp.

In a declaratory judgment action, plaintiff appeals from an order of the Supreme Court, Westchester County (Cerrato, J.), dated July 24, 1981, which granted defendant’s motion to change “the place of trial” from Kings County to Westchester County. Order affirmed, with $50 costs and disbursements. After this appeal was perfected, and approximately one week before it was submitted to the court, the defendant, The Lionel Corporation, filed a petition for reorganization under chapter 11 of title 11 of the United States Code in the United States Bankruptcy Court. This poses the question of whether the statutory stay of proceedings provided for in section 362 of title 11 of the United States Code would apply to our determination of this appeal, although neither party has raised the issue. We think not. The general rule is that, as long as we are not called upon to make a determination or ruling on the merits of the action, but simply rule on the question of where the action will be tried, the statutory stay does not apply. (Robinson v National Bank of Commerce of Dallas, 515 SW2d 166.) Titone, J. P., O’Connor, Niehoff and Rubin, JJ., concur.