Relates to a continuation of a stay of an order of enforcement pending appeal

BILL NUMBER:S5075

Title of bill

An act to amend the civil practice law and rules, in relation to the continuation of the stay pending appeal

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Advisory Committee on Civil Practice.

This measure would amend CPLR 5519 (e) to provide that, upon an appeal from an order affirming or modifying an order or judgment, any existing stay pending appeal continues if an appeal is taken, a motion is made for permission to appeal or an affidavit of intention to file a motion for permission to appeal is served within five days of the order of appealed from.

Under current law, the automatic five-day stay continues until final determination of the appeal if the appellant takes an appeal or makes a motion for permission to appeal within the five days. In contrast, under CPLR 5519(a), which deals with initial appeals, taking an appeal or serving an affidavit of intention to move for permission to appeal is sufficient to invoke the stay. It seems apparent to us that the original legislative intent in allowing a stay to be invoked upon the filing of an affidavit of intention to move for permission to appeal was to give the appellant the benefit of an immediate stay of execution of the judgment without having to prepare the papers in support of a motion for permission to appeal. It appears to have been an oversight on the Legislature's part that, upon a subsequent appeal, the appellant must actually prepare the papers on the motion for permission to appeal within five days in order to invoke the continuation of the stay.

Commentators are divided as to how the current CPLR 5519 (e) is to be interpreted, and as to whether a party that files an affidavit of intention receives the benefit of the continuation of the stay. Compare A. Karger, The Powers of the New York Court of Appeals, (3d ed. 2005) at 648, n.3 (opining that where an appellant does not have sufficient time to prepare a motion for leave to appeal, the appellant may serve a notice of intention to move for permission to appeal and thereby secure a stay); and T. Newman, New York Appellate Practice (3d. 1997) at § 6.06 (suggesting that, so long as an undertaking is still in effect, the service of an affidavit of intention to move for leave to appeal results in the continuation of the stay) with 36 Siegel's Prac. Rev. 2 (1995) (opining that, under CPLR 5519(e) the appellant must actually make a motion for leave to appeal and that an affidavit of intention to move for permission is not effective to continue the stay).

This amendment would resolve any existing ambiguity and would make it clear that the appellant, upon serving a notice of appeal or an affidavit of intention to seek permission to appeal, will receive the immediate benefit of the continuation of the stay already in existence on the appeal.

This measure would have no fiscal impact on the State. It would take effect immediately and shall apply to judgments or orders appealed from on or after that date.

Legislative History:

None. New proposal.