Obtaining a Discretionary Stay of Enforcement under CPLR 5519(c) Pending an Appeal
By J. Douglas Barics
Revised September 2019
1. Discretionary stay of enforcement under CPLR 5519(c)
When a trial level court issues an order or judgment, it remain fully enforceable even if it is being appealed, unless there is statute or court order to the contrary. CPLR 5519 provides the mechanism to stay enforcement of an order under appeal until the appeal itself is decided.
Sections (a) and (b) of CPLR 5519 provide automatic stays of enforcement, while subsection (c) authorizes the Court to use its discretion in granting a stay of enforcement by motion.
CPLR 5519 authorizes a stay enforcement of the order being appealed. In contrast a stay under CPLR 2201 stays the entire case. Not every order can have its enforcement stayed under CPLR 5519. For example, self executing orders, or orders which allow a matter to proceed are not subject to stays of enforcement. To stop these orders, a stay of proceedings under CPLR 2201 is necessary.
The differences between the a stay of proceedings under CPLR 2201 and a stay of enforcement under CPLR 5519 is illustrated in the case of Rhodes v. Mosher, 115 AD2d 351 (4th Dept. 1985). In Rhodes, an appeal was taken from an order. The appellant moved under both CPLR 2201 and 5519(c) to stay all further proceedings in the lower court. The Fourth Department denied the motion, holding that CPLR 5519 may only stay enforcement of the order being appealed. The request to stay the proceedings was denied without prejudice to an application where the case was pending.
2. Authority to Grant a Stay of Enforcement under CPLR 5519(c)
Both the trial level court and the Appellate Division are authorized to grant a stay of enforcement under CPLR 5519(c). For either court to do so, any motion seeking relief under a CPLR 5519 is dependent upon the taking of an appeal first. Lack of taking an appeal deprives the court of authority to entertain a CPLR 5519 application. See Plowden v. Manganiello 143 Misc.2d 446 (N.Y. Misc. 1989) (Bronx Supreme).
The standard for obtaining a discretionary stay under CPLR 5519(c) consists of meeting three requirements. (a) the likelihood of success on the merits, (b) irreparable injury in the absence of injunctive relief, and (c) the balancing of the equities between the parties. See Seitzman v. Hudson Riv. Assoc. (1st Dept. 1987) 126 A.D.2d 211 513 NYS 2d 148, Alexandru v. Pappas (2nd Dept. 2009) 68 A.D.3d 690; 890 N.Y.S.2d 593.
One of the few cases which does touch upon a CPLR 5519(c) motion is Matter of Grisi v. Shainswit, 119A.D.2d 418, 421 (1st Dept. 1986), which noted that stays are issued at the court's discretion, meaning that any application for a stay of enforcement under CPLR 5519(c), will be extremely fact specific in its arguments. The movant needs to recognize it is granted at the Court's discretion, and the best guidance for the layout of the argument is found in Seitzman and Alexandru's three requirement test.
3. Process for obtaining a stay under CPLR 5519(c)
A motion is required to obtain a stay of enforcement under CPLR 5519(c). As of September 2018, Rule 1250 governs all four departments, but each Department still its own specific rules which may differ. In the instances when a 5519(c) application is brought before a trial level court, specific judge's rules will apply.
a. Appellate Jurisdiction
The first step is to invoke appellate jurisdiction. If the order can be appealed as of right, a notice of appeal must be filed. If permission is required, the motion seeking permission must be filed. This motion can go hand in hand with the request to stay enforcement. Mandatory exhibits are either the notice of appeal with proof of filing or the copy of the motion seeking permission to appeal. The order being appealed is also required, as is a copy of the appellate informational statement. The function of these exhibits show appellate jurisdiction has been established. Absent jurisdiction, the Appellate Court cannot entertain an appeal, let alone a motion, as any motion must be made within the context of an appeal.
b. A Motion must be filed
A motion for a stay of enforcement can be brought by notice of motion or order to show cause (if permitted, the First Department does not allow motions by order to show cause). However, this stay would only come into effect when the motion is decided, which normally takes six weeks or more. If granted, the enforcement is stayed pending the appeal.
When the specific facts show that a stay of enforcement cannot wait until the motion is decided, a request for a T.R.O. can be made to stay enforcement pending the determination of the motion.
c. Request for a T.R.O. or Interim Order
The rules vary from department to department but the process is similar. First, the moving party prepares the motion and the proposed T.R.O. or interim order. Reasonable notice about the application for the T.R.O. must also be given, which is generally twenty four hours. This notice must include the date, time name and address of the courthouse where the application for the T.R.O. will be made. In addition, a copy of the motion must be given to the opposing side in advance of the request. The more time given, the less chance the T.R.O. will not be heard due to lack of notice.
In the Second Department, T.R.O. are contained in the order to show cause. In the First Department, a notice of motion is used, but an additional proposed Interim Order is prepared by the moving party. This form is available at the First Department's website and is linked here:
On the day the motion is filed, a single Appellate Justice will decide whether the T.R.O. is granted or denied. This decision does not affect the disposition of the motion itself, unless it makes the motion moot.
Nearly every request for a T.R.O. will require an explanation why the stay of enforcement cannot wait the six weeks to decide the motion.
4. The Factors Necessary to Grant a Stay Pending the Appeal under CPLR 5519
There are three factors that must be established to obtain a stay, both pending the motion and pending the appeal. They are:
- The likelihood of success on the merits
- Irreparable harm in the absence of injunctive relief
- A balancing of the equities
a. Likelihood of Success on the Merits
The likelihood of success on the merits means the side seeking the stay of enforcement must make a preliminary showing they are likely to succeed. Certainty of success is not required. A prima facie showing of success is sufficient, meaning that if the motion was unopposed the discretionary stay would be granted based on undisputed facts. This is the minimum level of showing needed, as the Court will also consider the opposing side’s argument why there is little likelihood of success. A disputed fact alone is not sufficient to defeat this prong.
b. Irreparable Harm
Irreparable harm is an injury which cannot be repaired by money. The harm must be concrete and not merely a speculation of possible harm. The harm must be more than the paying of money, as money can be paid back. In meeting the element of irreparable harm, the moving party must expressly state why a monetary award is not sufficient. If the order or judgment being appealed requires specific performance or involves a child, it is outside the range of what a money award could remedy. Loss of real estate will also fall outside of a monetary award, as each parcel of real estate is considered unique. But if the appealing party can be re-compensated by an award of money, a stay pending the appeal will not be granted.
There are two exceptions to this rule.
First, is if a specific asset is at stake. In order to meet this exception, it must be shown the specific asset will be irreparably damaged.
Second, is if it can be shown that the money paid would be hidden, dissipated or otherwise not be available to repay the side taking the appeal, these facts would constitute an exception.
c. Balancing of the Equities
A balancing of the equities requires the side seeking the stay of enforcement to show they would suffer greater harm by the lack of a stay than the opposing side would suffer by the imposition of a stay. This element is extremely is fact based and each request must show how the specific facts to that case show the equities favor the side seeking the stay.
All three elements must be met in order to obtain a stay of enforcement. Failing to meet a single one of them means the judgment or order may be enforced while the appeal is pending.
About J. Douglas Barics
J. Douglas Barics is an appeals lawyer located in Commack NY who regularly represents individuals in appeals.
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