Shorten v. City of White Plains

Appellate Division of the Supreme Court of New York

Shorten v. City of White Plains

216 A.D.2d 344, 631 N.Y.S.2d 519, 1995 N.Y. App. Div. LEXIS 14395

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 6, 1995

StatusPublished

Cited by9 cases

This text of 216 A.D.2d 344 (Shorten v. City of White Plains) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shorten v. City of White Plains, 216 A.D.2d 344, 631 N.Y.S.2d 519, 1995 N.Y. App. Div. LEXIS 14395 (N.Y. Ct. App. 1995).

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Opinion

Motion by the respondents to vacate a purported automatic stay of all proceedings in this action pending the hearing and determination of an appeal from an order of the Supreme Court, Westchester County, dated November 14, 1994.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

Ordered that the motion is denied as unnecessary, without costs of disbursements.

The defendant City of White Plains, a political subdivision of the State, appealed from an order which denied its motion for summary judgment. Thereafter, the parties appeared for jury selection and were advised by the trial court that proceedings in the action were "stayed for all purposes” by virtue of the automatic stay provisions of CPLR 5519 (a) (1).

The plaintiff-respondent now seeks vacatur of the perceived automatic stay and we deny the motion as unnecessary.

CPLR 5519 (a) (1), in pertinent part, "stays all proceedings to enforce the judgment or order appealed from pending the appeal * * * where * * * the appellant * * * is the state or of any political subdivision of the state”. The plain language of the statute makes it clear that only "proceedings to enforce [345]*345the judgment or order” are stayed and not all proceedings in the action. Since the trial of this action is not a proceeding to enforce the order which denied the City’s motion for summary judgment, the statutory stay provisions of CPLR 5519 (a) (1) clearly do not operate to prevent the trial from going forward (see, Baker v Board of Educ., 152 AD2d 1014; Walker v Delaware & Hudson R. R. Co., 120 AD2d 919; cf., Bloomfield Bldg. Wreckers v City of Troy, 41 NY2d 1102; Spillman v City of Rochester, 132 AD2d 1008). Accordingly, there is no stay of trial for this Court to vacate. Sullivan, J. P., Pizzuto, Santucci and Goldstein, JJ., concur.

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Motion by the respondents to vacate a purported automatic stay of all proceedings in this action pending the hearing and determination of an appeal from an order of the Supreme Court, Westchester County, dated November 14, 1994.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

Ordered that the motion is denied as unnecessary, without costs of disbursements.

The defendant City of White Plains, a political subdivision of the State, appealed from an order which denied its motion for summary judgment. Thereafter, the parties appeared for jury selection and were advised by the trial court that proceedings in the action were "stayed for all purposes” by virtue of the automatic stay provisions of CPLR 5519 (a) (1).

The plaintiff-respondent now seeks vacatur of the perceived automatic stay and we deny the motion as unnecessary.

CPLR 5519 (a) (1), in pertinent part, "stays all proceedings to enforce the judgment or order appealed from pending the appeal * * * where * * * the appellant * * * is the state or of any political subdivision of the state”. The plain language of the statute makes it clear that only "proceedings to enforce [345]*345the judgment or order” are stayed and not all proceedings in the action. Since the trial of this action is not a proceeding to enforce the order which denied the City’s motion for summary judgment, the statutory stay provisions of CPLR 5519 (a) (1) clearly do not operate to prevent the trial from going forward (see, Baker v Board of Educ., 152 AD2d 1014; Walker v Delaware & Hudson R. R. Co., 120 AD2d 919; cf., Bloomfield Bldg. Wreckers v City of Troy, 41 NY2d 1102; Spillman v City of Rochester, 132 AD2d 1008). Accordingly, there is no stay of trial for this Court to vacate. Sullivan, J. P., Pizzuto, Santucci and Goldstein, JJ., concur.

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Bluebook (online)

216 A.D.2d 344, 631 N.Y.S.2d 519, 1995 N.Y. App. Div. LEXIS 14395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shorten-v-city-of-white-plains-nyappdiv-1995.

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