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New York Appeal Essentials: Obtaining a Stay of Enforcement under CPLR 5519(c) - Discretionary Stays

Civil Practice Law and Rules 5519

By J. Douglas Barics

April 2016



Obtaining a stay of an adverse ruling is authorized under CPLR 2201 and CPLR 5519. These two provisions offer similar relief, but are fundamentally different.


CPLR 2201 allows a court in which the matter is pending to stay all proceedings in that case. If granted, the case is frozen, and no actions may be taken by either side.


In contrast, CPLR 5519 requires appellate jurisdiction to be established over a specific order, and the relief authorized under CPLR 5519 is limited to staying the enforcement of the order under appeal. Unlike CPLR 2201, the underlying case can continue otherwise.


Either the trial level court or the Appellate Division is authorized to grant a stay of enforcement under CPLR 5519(c). However, a CPLR 5519 motion is dependent upon the taking of an appeal first. Lack of taking an appeal deprives the court of authority to entertain a CPLR 5519 application. See Plowden v. Manganiello 143 Misc.2d 446 (N.Y. Misc. 1989) (Bronx Supreme).


The differences between the two statutes is illustrated in the case of Rhodes v. Mosher, 115 AD2d 351 (4th Dept. 1985). In Rhodes, an appeal was taken from an order giving the Appellate Division jurisdiction. The appellant moved under CPLR 2201 and 5519(c) to stay all further proceedings in the lower court. The Fourth Department denied the motion, holding that CPLR 5519 may only stay enforcement of the order being appealed. A CPLR 2201 application was not properly before the Appellate Division, as that needed to be requested by a separate motion in the trial court first, and once an appealable order determining that motion, was issued, the CPLR 2201 request to stay all proceedings could be appealed.


There is virtually no published case law which clarifies the standards used by the Appellate Division in granting or denying a motion for a stay of enforcement under CPLR 5519(c). As these applications are by motion and not appeals, decisions are almost always limited to simply granting or denying the motion.


Due to the absence of direct case law under CPLR 5519(c), most applications rely on a closely related application for guidance, requests for preliminary injunctions. The standard for obtaining a preliminary injunction consists of meeting three requirements. (a) the likelihood of success on the merits, (b) irreparable injury in the absence of injunctive relief, and (c) the balancing of the equities between the parties. See Seitzman v. Hudson Riv. Assoc. (1st Dept. 1987) 126 A.D.2d 211 513 NYS 2d 148, Alexandru v. Pappas (2nd Dept. 2009) 68 A.D.3d 690; 890 N.Y.S.2d 593.


Both of these cases provide clear guidance as to how the court will analyze requests for stays. Keep in mind these cases involved preliminary injunctions and not requests to stay enforcement pending an appeal.


One of the few cases which does touch upon a CPLR 5519(c) motion is Matter of Grisi v. Shainswit, 119A.D.2d 418, 421 (1st Dept. 1986), which noted that stays are issued at the court's discretion.


Thus, any application for a stay of enforcement under CPLR 5519(c), will be extremely fact specific in its arguments. The movant needs to recognize it is granted at the Court's discretion, and the best guidance for the layout of the argument is found in Seitzman and Alexandru's three requirement test. However, these cases are not binding, as they are not true 5519(c) applications.


Process for obtaining a stay under CPLR 5519(c)


A motion is required to obtain a stay of enforcement under CPLR 5519(c). Each Department has its own specific rules which differ, and in the rare instances when a 5519(c) application is brought before a trial level court, specific judge's rules will apply.


Motions in the Appellate Division under CPLR 5519(c)


The first step is to take the appeal from the order. If the order can be appealed as of right, a notice of appeal must be filed. If permission is required, the motion seeking the stay can also request permission to appeal. Mandatory exhibits are the notice of appeal with proof of filing, the order being appealed, the RADI (Second Department) or the Pre-argument Statement (First Department) should all be attached. The purpose is twofold. First, is these exhibits establish Appellate Court jurisdiction. Absent jurisdiction, the Appellate Court cannot entertain an appeal, let alone a motion. Second, is CPLR 5519 requires that an appeal be pending before any relief can be granted under it. Absent an appeal, any relief for a stay is limited to CPLR 2201, and that may only be sought at the trial court. See Rhodes v. Mosher.


A motion for a stay of enforcement can be brought by notice of motion or order to show cause (if permitted). However, the stay would only come into effect when the motion is decided, which could easily take six weeks or more. When an immediate stay of enforcement is necessary, an emergency application for a stay pending the motion is necessary.


The rules vary from department to department, but in general, a temporary restraining order may also be requested to stay the enforcement until the motion is decided. In the Second Department, this relief may be done by a normal order to show cause, which includes a request for injunctive relief. The First Department does not accept order to show cause motions. Instead, a separate proposed order granting a stay of enforcement pending the motion may be submitted in conjunction with the notice of motion for relief under CPLR 5519. The Third and Fourth Departments will also have their own specific rules as well.


In all cases, the T.R.O. to stay enforcement pending the motion will not be granted ex parte. Reasonable notice of the request for the T.R.O. must be given to the opposing side. While there is no mandatory rule, the common standard is at least 24 hours notice absent extraordinary circumstances.


If opposing counsel is not available, it is common to provide his or her cell phone to the court so they may participate by phone. Serving the motion for the stay of enforcement on your adversary is not required, but a little common courtesy will often be returned. Moreover, when the side opposing the motion has advance time to review it, the court will be less concerned that the moving party is trying to pull as fast one, and could be more inclined to decide favorably on the merits. As with any application, know your audience and know your adversary.


In the Second Department, an emergency application may be brought to the Appellate Division directly. The papers will be reviewed by the clerk, and then reviewed by a single justice. No argument is made in front of the justice however. Instead, a court attorney will review the papers, hear arguments from both sides, and speak to the justice in private.


Alternatively, the emergency applications may be brought to Appellate Justices in their respective satellite chambers, located in the individual counties that make up the Second Department. In general, the order to show cause must be submitted to the justice twenty four hours in advance as well as on opposing counsel. The Justice will hear each side. This approach allows the Justice to make inquires to both sides before deciding whether to grant or deny the T.R.O.. For the side that is seeking they stay of enforcement pending the motion, the opportunity to address specific questions raised by the Justice can prove invaluable in obtaining the T.R.O..


In the First Department, an order to show cause is not permitted. Instead, a normal notice of motion is submitted, along with a proposed temporary order that expires when the motion is decided. A single Appellate Justice will hear oral argument from both sides, and decide whether or not to sign the proposed temporary order.


If the request to stay enforcement of the order pending the appeal is made in the trial court, it would normally follow the same procedural rules used by the court for an order to show cause, and a T.R.O. if one is sought. Each county, each court, and each individual judge may have a different set of rules that must be followed in addition to the CPLR.


Summary


If a stay is necessary, two avenues are available, CPLR 2201 and CPLR 5519. Always bear in mind the different relief available under each section; CPLR 2201 can stay all proceedings while CPLR 5519 can only stay enforcement. A CPLR 5519 motion requires that an appeal be taken before the motion can be entertained, while a CPLR 2201 request does not. There is no authority to make a CPLR 2201 motion directly to the Appellate Division, it must be made to the trial court. Once an order is issued deciding that motion, that order which grants or denies the stay may be appealed under CPLR 5701. This appeal is entirely separate and distinct from the order from which the stay was requested.



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The article New York Appeals: Obtaining a Stay of Enforcement under CPLR 5519(c) - Discretionary Stays is provided as a free educational service by J. Douglas Barics, attorney at law, and does not constitute legal advice. Legal advice may only come from a qualified attorney who is familiar with the facts and circumstances of a specific case.


If you have any questions or comments, please feel free to contact Mr. Barics at lawyer@jdbar.com or (631) 864-2600. For more articles and information, please visit www.jdbar.com


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