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.

 

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