N.Y. Civil Practice Law & Rules § 5519: Stay of enforcement

§ 5519. Stay of enforcement. (a) Stay without court order. Service

upon the adverse party of a notice of appeal or an affidavit of

intention to move for permission to appeal stays all proceedings to

enforce the judgment or order appealed from pending the appeal or

determination on the motion for permission to appeal where:

1. the appellant or moving party is the state or any political

subdivision of the state or any officer or agency of the state or of any

political subdivision of the state; provided that where a court, after

considering an issue specified in question four of section seventy-eight

hundred three of this chapter, issues a judgment or order directing

reinstatement of a license held by a corporation with no more than five

stockholders and which employs no more than ten employees, a partnership

with no more than five partners and which employs no more than ten

employees, a proprietorship or a natural person, the stay provided for

by this paragraph shall be for a period of fifteen days; or

2. the judgment or order directs the payment of a sum of money, and an

undertaking in that sum is given that if the judgment or order appealed

from, or any part of it, is affirmed, or the appeal is dismissed, the

appellant or moving party shall pay the amount directed to be paid by

the judgment or order, or the part of it as to which the judgment or

order is affirmed; or

3. the judgment or order directs the payment of a sum of money, to be

paid in fixed installments, and an undertaking in a sum fixed by the

court of original instance is given that the appellant or moving party

shall pay each installment which becomes due pending the appeal and that

if the judgment or order appealed from, or any part of it, is affirmed,

or the appeal is dismissed, the appellant or moving party shall pay any

installments or part of installments then due or the part of them as to

which the judgment or order is affirmed; or

4. the judgment or order directs the assignment or delivery of

personal property, and the property is placed in the custody of an

officer designated by the court of original instance to abide the

direction of the court to which the appeal is taken, or an undertaking

in a sum fixed by the court of original instance is given that the

appellant or moving party will obey the direction of the court to which

the appeal is taken; or

5. the judgment or order directs the execution of any instrument, and

the instrument is executed and deposited in the office where the

original judgment or order is entered to abide the direction of the

court to which the appeal is taken; or

6. the appellant or moving party is in possession or control of real

property which the judgment or order directs be conveyed or delivered,

and an undertaking in a sum fixed by the court of original instance is

given that the appellant or moving party will not commit or suffer to be

committed any waste and that if the judgment or order appealed from, or

any part of it, is affirmed, or the appeal is dismissed, the appellant

or moving party shall pay the value of the use and occupancy of such

property, or the part of it as to which the judgment or order is

affirmed, from the taking of the appeal until the delivery of possession

of the property; if the judgment or order directs the sale of mortgaged

property and the payment of any deficiency, the undertaking shall also

provide that the appellant or moving party shall pay any such

deficiency; or

7. the judgment or order directs the performance of two or more of the

acts specified in subparagraphs two through six and the appellant or

moving party complies with each applicable subparagraph.

(b) Stay in action defended by insurer. If an appeal is taken from a

judgment or order entered against an insured in an action which is

defended by an insurance corporation, or other insurer, on behalf of the

insured under a policy of insurance the limit of liability of which is

less than the amount of said judgment or order, all proceedings to

enforce the judgment or order to the extent of the policy coverage shall

be stayed pending the appeal, and no action shall be commenced or

maintained against the insurer for payment under the policy pending the

appeal, where the insurer:

1. files with the clerk of the court in which the judgment or order

was entered a sworn statement of one of its officers, describing the

nature of the policy and the amount of coverage together with a written

undertaking that if the judgment or order appealed from, or any part of

it, is affirmed, or the appeal is dismissed, the insurer shall pay the

amount directed to be paid by the judgment or order, or the part of it

as to which the judgment or order is affirmed, to the extent of the

limit of liability in the policy, plus interest and costs;

2. serves a copy of such sworn statement and undertaking upon the

judgment creditor or his attorney; and

3. delivers or mails to the insured at the latest address of the

insured appearing upon the records of the insurer, written notice that

the enforcement of such judgment or order, to the extent that the amount

it directs to be paid exceeds the limit of liability in the policy, is

not stated in respect to the insured. A stay of enforcement of the

balance of the amount of the judgment or order may be imposed by giving

an undertaking, as provided in paragraph two of subdivision (a), in an

amount equal to that balance.

(c) Stay and limitation of stay by court order. The court from or to

which an appeal is taken or the court of original instance may stay all

proceedings to enforce the judgment or order appealed from pending an

appeal or determination on a motion for permission to appeal in a case

not provided for in subdivision (a) or subdivision (b), or may grant a

limited stay or may vacate, limit or modify any stay imposed by

subdivision (a), subdivision (b) or this subdivision, except that only

the court to which an appeal is taken may vacate, limit or modify a stay

imposed by paragraph one of subdivision (a).

(d) Undertaking. On an appeal from an order affirming a judgment or

order, the undertaking shall secure both the order and the judgment or

order which is affirmed.

(e) Continuation of stay. If the judgment or order appealed from is

affirmed or modified, the stay shall continue for five days after

service upon the appellant of the order of affirmance or modification

with notice of its entry in the court to which the appeal was taken. If

an appeal is taken, or a motion is made for permission to appeal, from

such an order before the expiration of the five days, the stay shall

continue until five days after service of notice of the entry of the

order determining such appeal or motion. When a motion for permission to

appeal is involved, the stay, or any other stay granted pending

determination of the motion for permission to appeal, shall:

(i) if the motion is granted, continue until five days after the

appeal is determined; or

(ii) if the motion is denied, continue until five days after the

movant is served with the order of denial with notice of its entry.

(f) Proceedings after stay. A stay of enforcement shall not prevent

the court of original instance from proceeding in any matter not

affected by the judgment or order appealed from or from directing the

sale of perishable property.

(g) Appeals in medical, dental or podiatric malpractice judgments. In

an action for medical, dental or podiatric malpractice, if an appeal is

taken from a judgment in excess of one million dollars and an

undertaking in the amount of one million dollars or the limit of

insurance coverage available to the appellant for the occurrence,

whichever is greater, is given together with a joint undertaking by the

appellant and any insurer of the appellant's professional liability

that, during the period of such stay, the appellant will make no

voidable transaction as described in article ten of the debtor and

creditor law, the court to which such an appeal is taken shall stay all

proceedings to enforce the judgment pending such appeal if it finds that

there is a reasonable probability that the judgment may be reversed or

determined excessive. In making a determination under this subdivision,

the court shall not consider the availability of a stay pursuant to

subdivision (a) or (b) of this section. Liability under such joint

undertaking shall be limited to voidable transactions made by the

appellant subsequent to the execution of such undertaking and during the

period of such stay, but nothing herein shall limit the liability of the

appellant for voidable transactions pursuant to article ten of the

debtor and creditor law or any other law. An insurer that pays money to

a beneficiary of such a joint undertaking shall thereupon be subrogated,

to the extent of the amount to be paid, to the rights and interests of

such beneficiary, as a judgment creditor, against the appellant on whose

behalf the joint undertaking was executed.