Spillman v. City of Rochester

Appellate Division of the Supreme Court of New York

Spillman v. City of Rochester

132 A.D.2d 1008, 518 N.Y.S.2d 475, 1987 N.Y. App. Div. LEXIS 49494

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

DecidedJuly 10, 1987

StatusPublished

Cited by4 cases

This text of 132 A.D.2d 1008 (Spillman v. City of Rochester) 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

Spillman v. City of Rochester, 132 A.D.2d 1008, 518 N.Y.S.2d 475, 1987 N.Y. App. Div. LEXIS 49494 (N.Y. Ct. App. 1987).

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Opinion

Motion to vacate automatic stay denied as unnecessary. Memorandum: The motion of the [1009]*1009defendant City of Rochester to dismiss plaintiff’s complaint was denied and the city appealed. Plaintiff now moves before us to vacate what it perceives to be an automatic stay effected by the city’s appeal pursuant to CPLR 5519 (a) (1). Plaintiff contends that vacating the stay is necessary to compel the city to answer the complaint; that pursuant to CPLR 3211 (f), the city’s time to answer has been extended until 10 days after the service of notice of entry of the order denying the motion to dismiss the complaint and that the city’s appeal has stayed the effect of the order.

The motion is denied as unnecessary. The only effect under CPLR 5519 (a) of the city’s appeal was to stay "all proceedings to enforce the judgment or order appealed from”; the appeal did not otherwise stay the effect of the order (see, Bloomfield Bldg. Wreckers v City of Troy, 41 NY2d 1102, 1103; Dublanica v Rome Hosp./Murphy Mem. Hosp., 126 AD2d 977; Matter of Gordon v Town of Esopus, 107 AD2d 114, 115, lv denied 65 NY2d 609; Christian v Village of Herkimer, 5 AD2d 62, 65, affd 5 NY2d 818). Present—Dillon, P. J., Doerr, Boomer, Pine and Lawton, JJ.

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Motion to vacate automatic stay denied as unnecessary. Memorandum: The motion of the [1009]*1009defendant City of Rochester to dismiss plaintiff’s complaint was denied and the city appealed. Plaintiff now moves before us to vacate what it perceives to be an automatic stay effected by the city’s appeal pursuant to CPLR 5519 (a) (1). Plaintiff contends that vacating the stay is necessary to compel the city to answer the complaint; that pursuant to CPLR 3211 (f), the city’s time to answer has been extended until 10 days after the service of notice of entry of the order denying the motion to dismiss the complaint and that the city’s appeal has stayed the effect of the order.

The motion is denied as unnecessary. The only effect under CPLR 5519 (a) of the city’s appeal was to stay "all proceedings to enforce the judgment or order appealed from”; the appeal did not otherwise stay the effect of the order (see, Bloomfield Bldg. Wreckers v City of Troy, 41 NY2d 1102, 1103; Dublanica v Rome Hosp./Murphy Mem. Hosp., 126 AD2d 977; Matter of Gordon v Town of Esopus, 107 AD2d 114, 115, lv denied 65 NY2d 609; Christian v Village of Herkimer, 5 AD2d 62, 65, affd 5 NY2d 818). Present—Dillon, P. J., Doerr, Boomer, Pine and Lawton, JJ.

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Bluebook (online)

132 A.D.2d 1008, 518 N.Y.S.2d 475, 1987 N.Y. App. Div. LEXIS 49494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spillman-v-city-of-rochester-nyappdiv-1987.

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