Baker v. Board of Education of West Irondequoit School District

152 A.D.2d 1014, 544 N.Y.S.2d 258, 1989 N.Y. App. Div. LEXIS 10013

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1989
• Status: Published

Opinion

Motion insofar as it requests dismissal of appeal granted unless appellants’ records and briefs are filed and served on or before August 25, 1989; insofar as it requests the automatic stay be vacated, the motion is denied as unnecessary. Memorandum: Neither a discretionary stay nor an automatic stay under CPLR 5519 stays all proceedings in the action; it stays only proceedings to enforce the order or judgment appealed from (see, Rhodes v Mosher, 115 AD2d 351, followed in Epping v County of Monroe, 151 AD2d 1049; Matter of Gordon v Town of Esopus, 107 AD2d 114, 115, Iv denied 65 NY2d 609). The order here appealed from denied defendant’s motion for summary judgment. The trial of the action is not a proceeding to enforce that order; hence, the filing of the notice of appeal by the school district did not effect an automatic stay of the trial under CPLR 5519 (a) (1). Present — Callahan, J. P., Doerr, Boomer, Green and Lawton, JJ.