Stay of Enforcement Pending the Appeal
Stay of Enforcement Pending the Appeal under CPLR 5519
When an appeal is filed, the underlying order or judgment remains in effect unless there is an order to the contrary.
CPLR 5519 provides the authority under which an order being appealed may not be enforced until the appeal is decided.
Subsection (a) lists the conditions which grant an automatic stay of enforcement. The central theme behind this section is the appellant must post sufficient money or property in escrow to ensure the prevailing side can obtain what was awarded to him or her without delay.
When that is not feasible, subsection (c) allows the court to grant a stay of enforcement at its discretion.
In order to obtain a stay of enforcement under CPLR 5519(c), an appeal must be filed. Absent an appeal, no relief can be granted under CPLR 5519.
In order to obtain a discretionary stay, three elements must be established.
- The likelihood the appealing party will prevail in the appeal
- Irreparable harm if the stay of enforcement is not granted
- A balancing of the equities.
A motion for a discretionary stay under CPLR 5519(c) usually takes about two months to be decided.
If a stay of enforcement cannot wait until the motion is decided, a request for an emergency order staying enforcement until the motion is decided can be requested as well.
Stays of enforcement are not granted liberally, and merely arguing the merit of an appeal will not be sufficient to prevail in these motions, even if the appeal itself is granted on the exact same same arguments.
Call for a Free Phone Consultation or to Schedule a Low Cost Office Consultation
If you have have additional questions, contact our office to learn about your legal options for protecting your rights in any appeal. To get your free phone consultation or to make an appointment, call (631) 864-2600. Serving clients in Suffolk, Nassau, Queens, Manhattan, Bronx, Westchester. Rockland, Orange and other surrounding counties are accepted on a case by case basis.
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Appeal Overview
An appeal is a request to a higher court to review the trial court for errors made by the court. An appeal is fundamentally different than a trial court, both in a prosecution or defense.
Prosecution of Appeals
Prosecuting an appeal begins with the filing of the notice of appeal or making a motion for permission to appeal. The record must be prepared and the brief must be written and filed.
Defense of Appeals
Defending an appeal involves responding to the appellant's brief and explaining why the lower court was correct in its determination, or if any mistakes were made, they were minor.
Cross Appeals
An appeals court can only grant relief to the side who files a notice of appeal. When both sides request appellate relief, both sides must argue their appeal and defend against the cross appeal.
Stay of Enforcement
A stay of enforcement is not automatic but must be requested. In some instances this stay may be automatically granted. If an automatic stay of enforcement is not available, then a motion for a discretionary stay of enforcement can be requested by a motion.
Appellate Motion Practice
Appellate motion practice can resolve numerous procedural issues to ensure an appeal is heard on the merits and not dismissed.
5704 Review
A CPLR 5704 review is not an appeal. Its an expedited process for appellate review of an ex parte order, and usually takes one or two days for a decision.
