Stay of Enforcement Pending the Appeal
Appeals Lawyer in Suffolk and Nassau for Stay of Enforcement under CPLR 5519
The filing of an appeal does not stay the order being appealed. It remains in effect and can be enforced by any lawful mechanism. In some instances, the order can be stayed from being enforced while the appeal is pending.
If you have an order or judgment that you intend to appeal, you can request that it be stayed while the appeal is being decided.
At the Law Office of J. Douglas Barics, we have extensive experience seeking discretionary stays. They are not easy to obtain, and they are denied more often than not. If you want to improve your chances of obtaining a stay of enforcement, we can map out the most effective strategy for you to increase your odds of having the appealed order stayed from being enforced.
Do you need representation in an appeal in the First or Second Department?
Contact us online or at (631) 864-2600.
What You Need to Know About CPLR 5519 Stays of Enforcement
What is a stay of enforcement pending an appeal?
A stay of enforcement means the order being appealed cannot be enforced until the appeal is decided. It does not stop the case itself from progressing. Only orders which are capable of being enforced can be subject to a stay of enforcement.
When is a stay of enforcement available?
A stay of enforcement is available only after the notice of appeal is filed. The request for the stay of enforcement may be made either in the Appellate Division or the trial court.
Is the stay of enforcement automatic?
No. Some stays of enforcement may be automatically granted if certain things are done, others are at the discretion of the court.
When is an automatic stay of enforcement granted?
For a money judgment, an automatic stay of enforcement is granted when the full amount owed is deposited into an appeal bond, thus insuring the winning party they will collect the judgment if the order is affirmed. CPLR 5519(a) lists the various ways to get an automatic stay of enforcement for different types of judgments.
What is a discretionary stays of enforcement?
CPLR 5519(c) authorizes the court to issue a stay of enforcement at its discretion.
What is the standard for getting a stay of enforcement?
There is a three prong test. All three prongs must be met to get a stay of enforcement.
- The merits of the appeal. It must be shown the appeal has a strong likelihood of succeeding on the merits.
- The balancing of the equities. It must be show that the equities favors the appellant. The equities favor the appellant when the denial of the stay harms the appellant but the granting of a stay does not harm the respondent.
- Irreparable Harm. The harm in not getting a stay of enforcement is irreparable to the appellant, meaning that a mere money judgment in favor of the appellant cannot put the appellant back to where they were if the appeal is successful.
How Long Does it Take for the Motion to be Decided?
It can take weeks or even motions for the Appellate Division to decide the motion. 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. In the Second Department, the TRO is made through an order to show cause. As the First Department does not permit order to show causes, the TRO request is made through the Interim Order request.
Contact Our Appellate Counsel Today
At the Law Office of J. Douglas Barics, we have the skills and knowledge to handle any appeal, no matter how challenging or complex. With over 20 years of appellate experience, we can bring to you the services of a large firm at a fraction of the cost. When you need a skilled appellate lawyer located in Suffolk County, call The Law Office of J. Douglas Barics.
For a free phone case consultation or to schedule an office meeting, call 631-864-2600.