§ 5519 — Stay of enforcement

New York § 5519

• Jurisdiction: New York
• Law CVP: Civil Practice Law & Rules
• Art. 55: Appeals Generally

Text

§ 5519. Stay of enforcement. (a) Stay without court order. Service\nupon the adverse party of a notice of appeal or an affidavit of\nintention to move for permission to appeal stays all proceedings to\nenforce the judgment or order appealed from pending the appeal or\ndetermination on the motion for permission to appeal where:\n 1. the appellant or moving party is the state or any political\nsubdivision of the state or any officer or agency of the state or of any\npolitical subdivision of the state; provided that where a court, after\nconsidering an issue specified in question four of section seventy-eight\nhundred three of this chapter, issues a judgment or order directing\nreinstatement of a license held by a corporation with no more than five\nstockholders and which employs no more than ten employees, a partnership\nwith no more than five partners and which employs no more than ten\nemployees, a proprietorship or a natural person, the stay provided for\nby this paragraph shall be for a period of fifteen days; or\n 2. the judgment or order directs the payment of a sum of money, and an\nundertaking in that sum is given that if the judgment or order appealed\nfrom, or any part of it, is affirmed, or the appeal is dismissed, the\nappellant or moving party shall pay the amount directed to be paid by\nthe judgment or order, or the part of it as to which the judgment or\norder is affirmed; or\n 3. the judgment or order directs the payment of a sum of money, to be\npaid in fixed installments, and an undertaking in a sum fixed by the\ncourt of original instance is given that the appellant or moving party\nshall pay each installment which becomes due pending the appeal and that\nif the judgment or order appealed from, or any part of it, is affirmed,\nor the appeal is dismissed, the appellant or moving party shall pay any\ninstallments or part of installments then due or the part of them as to\nwhich the judgment or order is affirmed; or\n 4. the judgment or order directs the assignment or delivery of\npersonal property, and the property is placed in the custody of an\nofficer designated by the court of original instance to abide the\ndirection of the court to which the appeal is taken, or an undertaking\nin a sum fixed by the court of original instance is given that the\nappellant or moving party will obey the direction of the court to which\nthe appeal is taken; or\n 5. the judgment or order directs the execution of any instrument, and\nthe instrument is executed and deposited in the office where the\noriginal judgment or order is entered to abide the direction of the\ncourt to which the appeal is taken; or\n 6. the appellant or moving party is in possession or control of real\nproperty which the judgment or order directs be conveyed or delivered,\nand an undertaking in a sum fixed by the court of original instance is\ngiven that the appellant or moving party will not commit or suffer to be\ncommitted any waste and that if the judgment or order appealed from, or\nany part of it, is affirmed, or the appeal is dismissed, the appellant\nor moving party shall pay the value of the use and occupancy of such\nproperty, or the part of it as to which the judgment or order is\naffirmed, from the taking of the appeal until the delivery of possession\nof the property; if the judgment or order directs the sale of mortgaged\nproperty and the payment of any deficiency, the undertaking shall also\nprovide that the appellant or moving party shall pay any such\ndeficiency; or\n 7. the judgment or order directs the performance of two or more of the\nacts specified in subparagraphs two through six and the appellant or\nmoving party complies with each applicable subparagraph.\n (b) Stay in action defended by insurer. If an appeal is taken from a\njudgment or order entered against an insured in an action which is\ndefended by an insurance corporation, or other insurer, on behalf of the\ninsured under a policy of insurance the limit of liability of which is\nless than the amount of said judgment or order, all proceedings to\nenforce the judgment or order to the extent of the policy coverage shall\nbe stayed pending the appeal, and no action shall be commenced or\nmaintained against the insurer for payment under the policy pending the\nappeal, where the insurer:\n 1. files with the clerk of the court in which the judgment or order\nwas entered a sworn statement of one of its officers, describing the\nnature of the policy and the amount of coverage together with a written\nundertaking that if the judgment or order appealed from, or any part of\nit, is affirmed, or the appeal is dismissed, the insurer shall pay the\namount directed to be paid by the judgment or order, or the part of it\nas to which the judgment or order is affirmed, to the extent of the\nlimit of liability in the policy, plus interest and costs;\n 2. serves a copy of such sworn statement and undertaking upon the\njudgment creditor or his attorney; and\n 3. delivers or mails to the insured at the latest address of the\ninsured appearing upon the records of the insurer, written notice that\nthe enforcement of such judgment or order, to the extent that the amount\nit directs to be paid exceeds the limit of liability in the policy, is\nnot stated in respect to the insured. A stay of enforcement of the\nbalance of the amount of the judgment or order may be imposed by giving\nan undertaking, as provided in paragraph two of subdivision (a), in an\namount equal to that balance.\n (c) Stay and limitation of stay by court order. The court from or to\nwhich an appeal is taken or the court of original instance may stay all\nproceedings to enforce the judgment or order appealed from pending an\nappeal or determination on a motion for permission to appeal in a case\nnot provided for in subdivision (a) or subdivision (b), or may grant a\nlimited stay or may vacate, limit or modify any stay imposed by\nsubdivision (a), subdivision (b) or this subdivision, except that only\nthe court to which an appeal is taken may vacate, limit or modify a stay\nimposed by paragraph one of subdivision (a).\n (d) Undertaking. On an appeal from an order affirming a judgment or\norder, the undertaking shall secure both the order and the judgment or\norder which is affirmed.\n (e) Continuation of stay. If the judgment or order appealed from is\naffirmed or modified, the stay shall continue for five days after\nservice upon the appellant of the order of affirmance or modification\nwith notice of its entry in the court to which the appeal was taken. If\nan appeal is taken, or a motion is made for permission to appeal, from\nsuch an order before the expiration of the five days, the stay shall\ncontinue until five days after service of notice of the entry of the\norder determining such appeal or motion. When a motion for permission to\nappeal is involved, the stay, or any other stay granted pending\ndetermination of the motion for permission to appeal, shall:\n (i) if the motion is granted, continue until five days after the\nappeal is determined; or\n (ii) if the motion is denied, continue until five days after the\nmovant is served with the order of denial with notice of its entry.\n (f) Proceedings after stay. A stay of enforcement shall not prevent\nthe court of original instance from proceeding in any matter not\naffected by the judgment or order appealed from or from directing the\nsale of perishable property.\n (g) Appeals in medical, dental or podiatric malpractice judgments. In\nan action for medical, dental or podiatric malpractice, if an appeal is\ntaken from a judgment in excess of one million dollars and an\nundertaking in the amount of one million dollars or the limit of\ninsurance coverage available to the appellant for the occurrence,\nwhichever is greater, is given together with a joint undertaking by the\nappellant and any insurer of the appellant's professional liability\nthat, during the period of such stay, the appellant will make no\nvoidable transaction as described in article ten of the debtor and\ncreditor law, the court to which such an appeal is taken shall stay all\nproceedings to enforce the judgment pending such appeal if it finds that\nthere is a reasonable probability that the judgment may be reversed or\ndetermined excessive. In making a determination under this subdivision,\nthe court shall not consider the availability of a stay pursuant to\nsubdivision (a) or (b) of this section. Liability under such joint\nundertaking shall be limited to voidable transactions made by the\nappellant subsequent to the execution of such undertaking and during the\nperiod of such stay, but nothing herein shall limit the liability of the\nappellant for voidable transactions pursuant to article ten of the\ndebtor and creditor law or any other law. An insurer that pays money to\na beneficiary of such a joint undertaking shall thereupon be subrogated,\nto the extent of the amount to be paid, to the rights and interests of\nsuch beneficiary, as a judgment creditor, against the appellant on whose\nbehalf the joint undertaking was executed.\n