2022 New York Laws
CVP - Civil Practice Law and Rules
Article 55 - Appeals Generally
5519 - Stay of Enforcement.

Universal Citation: NY CPLR § 5519 (2022)
§  5519.  Stay  of  enforcement. (a) Stay without court order. Service
upon the adverse party  of  a  notice  of  appeal  or  an  affidavit  of
intention  to  move  for  permission  to appeal stays all proceedings to
enforce the judgment or  order  appealed  from  pending  the  appeal  or
determination on the motion for permission to appeal where:
  1.  the  appellant  or  moving  party  is  the  state or any political
subdivision of the state or any officer or agency of the state or of any
political subdivision of the state; provided that where a  court,  after
considering an issue specified in question four of section seventy-eight
hundred  three  of  this  chapter,  issues a judgment or order directing
reinstatement of a license held by a corporation with no more than  five
stockholders and which employs no more than ten employees, a partnership
with  no  more  than  five  partners  and which employs no more than ten
employees, a proprietorship or a natural person, the stay  provided  for
by this paragraph shall be for a period of fifteen days; or
  2. the judgment or order directs the payment of a sum of money, and an
undertaking  in that sum is given that if the judgment or order appealed
from, or any part of it, is affirmed, or the appeal  is  dismissed,  the
appellant  or  moving  party shall pay the amount directed to be paid by
the judgment or order, or the part of it as to  which  the  judgment  or
order is affirmed; or
  3.  the judgment or order directs the payment of a sum of money, to be
paid in fixed installments, and an undertaking in a  sum  fixed  by  the
court  of  original instance is given that the appellant or moving party
shall pay each installment which becomes due pending the appeal and that
if the judgment or order appealed from, or any part of it, is  affirmed,
or  the appeal is dismissed, the appellant or moving party shall pay any
installments or part of installments then due or the part of them as  to
which the judgment or order is affirmed; or
  4.  the  judgment  or  order  directs  the  assignment  or delivery of
personal property, and the property is  placed  in  the  custody  of  an
officer  designated  by  the  court  of  original  instance to abide the
direction of the court to which the appeal is taken, or  an  undertaking
in  a  sum  fixed  by  the  court of original instance is given that the
appellant or moving party will obey the direction of the court to  which
the appeal is taken; or
  5.  the judgment or order directs the execution of any instrument, and
the instrument is  executed  and  deposited  in  the  office  where  the
original  judgment  or  order  is  entered to abide the direction of the
court to which the appeal is taken; or
  6. the appellant or moving party is in possession or control  of  real
property  which  the judgment or order directs be conveyed or delivered,
and an undertaking in a sum fixed by the court of original  instance  is
given that the appellant or moving party will not commit or suffer to be
committed  any waste and that if the judgment or order appealed from, or
any part of it, is affirmed, or the appeal is dismissed,  the  appellant
or  moving  party  shall  pay the value of the use and occupancy of such
property, or the part of it  as  to  which  the  judgment  or  order  is
affirmed, from the taking of the appeal until the delivery of possession
of  the property; if the judgment or order directs the sale of mortgaged
property and the payment of any deficiency, the undertaking  shall  also
provide   that  the  appellant  or  moving  party  shall  pay  any  such
deficiency; or
  7. the judgment or order directs the performance of two or more of the
acts specified in subparagraphs two through six  and  the  appellant  or
moving party complies with each applicable subparagraph.

(b) Stay in action defended by insurer. If an appeal is taken from a judgment or order entered against an insured in an action which is defended by an insurance corporation, or other insurer, on behalf of the insured under a policy of insurance the limit of liability of which is less than the amount of said judgment or order, all proceedings to enforce the judgment or order to the extent of the policy coverage shall be stayed pending the appeal, and no action shall be commenced or maintained against the insurer for payment under the policy pending the appeal, where the insurer: 1. files with the clerk of the court in which the judgment or order was entered a sworn statement of one of its officers, describing the nature of the policy and the amount of coverage together with a written undertaking that if the judgment or order appealed from, or any part of it, is affirmed, or the appeal is dismissed, the insurer shall pay the amount directed to be paid by the judgment or order, or the part of it as to which the judgment or order is affirmed, to the extent of the limit of liability in the policy, plus interest and costs; 2. serves a copy of such sworn statement and undertaking upon the judgment creditor or his attorney; and 3. delivers or mails to the insured at the latest address of the insured appearing upon the records of the insurer, written notice that the enforcement of such judgment or order, to the extent that the amount it directs to be paid exceeds the limit of liability in the policy, is not stated in respect to the insured. A stay of enforcement of the balance of the amount of the judgment or order may be imposed by giving an undertaking, as provided in paragraph two of subdivision (a), in an amount equal to that balance.

(c) Stay and limitation of stay by court order. The court from or to which an appeal is taken or the court of original instance may stay all proceedings to enforce the judgment or order appealed from pending an appeal or determination on a motion for permission to appeal in a case not provided for in subdivision (a) or subdivision (b), or may grant a limited stay or may vacate, limit or modify any stay imposed by subdivision (a), subdivision (b) or this subdivision, except that only the court to which an appeal is taken may vacate, limit or modify a stay imposed by paragraph one of subdivision (a).

(d) Undertaking. On an appeal from an order affirming a judgment or order, the undertaking shall secure both the order and the judgment or order which is affirmed.

(e) Continuation of stay. If the judgment or order appealed from is affirmed or modified, the stay shall continue for five days after service upon the appellant of the order of affirmance or modification with notice of its entry in the court to which the appeal was taken. If an appeal is taken, or a motion is made for permission to appeal, from such an order before the expiration of the five days, the stay shall continue until five days after service of notice of the entry of the order determining such appeal or motion. When a motion for permission to appeal is involved, the stay, or any other stay granted pending determination of the motion for permission to appeal, shall:

(i) if the motion is granted, continue until five days after the appeal is determined; or

(ii) if the motion is denied, continue until five days after the movant is served with the order of denial with notice of its entry.

(f) Proceedings after stay. A stay of enforcement shall not prevent the court of original instance from proceeding in any matter not affected by the judgment or order appealed from or from directing the sale of perishable property.

(g) Appeals in medical, dental or podiatric malpractice judgments. In an action for medical, dental or podiatric malpractice, if an appeal is taken from a judgment in excess of one million dollars and an undertaking in the amount of one million dollars or the limit of insurance coverage available to the appellant for the occurrence, whichever is greater, is given together with a joint undertaking by the appellant and any insurer of the appellant's professional liability that, during the period of such stay, the appellant will make no voidable transaction as described in article ten of the debtor and creditor law, the court to which such an appeal is taken shall stay all proceedings to enforce the judgment pending such appeal if it finds that there is a reasonable probability that the judgment may be reversed or determined excessive. In making a determination under this subdivision, the court shall not consider the availability of a stay pursuant to subdivision (a) or (b) of this section. Liability under such joint undertaking shall be limited to voidable transactions made by the appellant subsequent to the execution of such undertaking and during the period of such stay, but nothing herein shall limit the liability of the appellant for voidable transactions pursuant to article ten of the debtor and creditor law or any other law. An insurer that pays money to a beneficiary of such a joint undertaking shall thereupon be subrogated, to the extent of the amount to be paid, to the rights and interests of such beneficiary, as a judgment creditor, against the appellant on whose behalf the joint undertaking was executed.

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