Senate Bill S5075

                                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.