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This entry was published on 2020-04-10
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SECTION 5519
Stay of enforcement
Civil Practice Law & Rules (CVP) CHAPTER 8, ARTICLE 55
§ 5519. Stay of enforcement. (a) Stay without court order. Service
upon the adverse party of a notice of appeal or an affidavit of
intention to move for permission to appeal stays all proceedings to
enforce the judgment or order appealed from pending the appeal or
determination on the motion for permission to appeal where:

1. the appellant or moving party is the state or any political
subdivision of the state or any officer or agency of the state or of any
political subdivision of the state; provided that where a court, after
considering an issue specified in question four of section seventy-eight
hundred three of this chapter, issues a judgment or order directing
reinstatement of a license held by a corporation with no more than five
stockholders and which employs no more than ten employees, a partnership
with no more than five partners and which employs no more than ten
employees, a proprietorship or a natural person, the stay provided for
by this paragraph shall be for a period of fifteen days; or

2. the judgment or order directs the payment of a sum of money, and an
undertaking in that sum is given that if the judgment or order appealed
from, or any part of it, is affirmed, or the appeal is dismissed, the
appellant or moving party shall pay the amount directed to be paid by
the judgment or order, or the part of it as to which the judgment or
order is affirmed; or

3. the judgment or order directs the payment of a sum of money, to be
paid in fixed installments, and an undertaking in a sum fixed by the
court of original instance is given that the appellant or moving party
shall pay each installment which becomes due pending the appeal and that
if the judgment or order appealed from, or any part of it, is affirmed,
or the appeal is dismissed, the appellant or moving party shall pay any
installments or part of installments then due or the part of them as to
which the judgment or order is affirmed; or

4. the judgment or order directs the assignment or delivery of
personal property, and the property is placed in the custody of an
officer designated by the court of original instance to abide the
direction of the court to which the appeal is taken, or an undertaking
in a sum fixed by the court of original instance is given that the
appellant or moving party will obey the direction of the court to which
the appeal is taken; or

5. the judgment or order directs the execution of any instrument, and
the instrument is executed and deposited in the office where the
original judgment or order is entered to abide the direction of the
court to which the appeal is taken; or

6. the appellant or moving party is in possession or control of real
property which the judgment or order directs be conveyed or delivered,
and an undertaking in a sum fixed by the court of original instance is
given that the appellant or moving party will not commit or suffer to be
committed any waste and that if the judgment or order appealed from, or
any part of it, is affirmed, or the appeal is dismissed, the appellant
or moving party shall pay the value of the use and occupancy of such
property, or the part of it as to which the judgment or order is
affirmed, from the taking of the appeal until the delivery of possession
of the property; if the judgment or order directs the sale of mortgaged
property and the payment of any deficiency, the undertaking shall also
provide that the appellant or moving party shall pay any such
deficiency; or

7. the judgment or order directs the performance of two or more of the
acts specified in subparagraphs two through six and the appellant or
moving party complies with each applicable subparagraph.

(b) Stay in action defended by insurer. If an appeal is taken from a
judgment or order entered against an insured in an action which is
defended by an insurance corporation, or other insurer, on behalf of the
insured under a policy of insurance the limit of liability of which is
less than the amount of said judgment or order, all proceedings to
enforce the judgment or order to the extent of the policy coverage shall
be stayed pending the appeal, and no action shall be commenced or
maintained against the insurer for payment under the policy pending the
appeal, where the insurer:

1. files with the clerk of the court in which the judgment or order
was entered a sworn statement of one of its officers, describing the
nature of the policy and the amount of coverage together with a written
undertaking that if the judgment or order appealed from, or any part of
it, is affirmed, or the appeal is dismissed, the insurer shall pay the
amount directed to be paid by the judgment or order, or the part of it
as to which the judgment or order is affirmed, to the extent of the
limit of liability in the policy, plus interest and costs;

2. serves a copy of such sworn statement and undertaking upon the
judgment creditor or his attorney; and

3. delivers or mails to the insured at the latest address of the
insured appearing upon the records of the insurer, written notice that
the enforcement of such judgment or order, to the extent that the amount
it directs to be paid exceeds the limit of liability in the policy, is
not stated in respect to the insured. A stay of enforcement of the
balance of the amount of the judgment or order may be imposed by giving
an undertaking, as provided in paragraph two of subdivision (a), in an
amount equal to that balance.

(c) Stay and limitation of stay by court order. The court from or to
which an appeal is taken or the court of original instance may stay all
proceedings to enforce the judgment or order appealed from pending an
appeal or determination on a motion for permission to appeal in a case
not provided for in subdivision (a) or subdivision (b), or may grant a
limited stay or may vacate, limit or modify any stay imposed by
subdivision (a), subdivision (b) or this subdivision, except that only
the court to which an appeal is taken may vacate, limit or modify a stay
imposed by paragraph one of subdivision (a).

(d) Undertaking. On an appeal from an order affirming a judgment or
order, the undertaking shall secure both the order and the judgment or
order which is affirmed.

(e) Continuation of stay. If the judgment or order appealed from is
affirmed or modified, the stay shall continue for five days after
service upon the appellant of the order of affirmance or modification
with notice of its entry in the court to which the appeal was taken. If
an appeal is taken, or a motion is made for permission to appeal, from
such an order before the expiration of the five days, the stay shall
continue until five days after service of notice of the entry of the
order determining such appeal or motion. When a motion for permission to
appeal is involved, the stay, or any other stay granted pending
determination of the motion for permission to appeal, shall:

(i) if the motion is granted, continue until five days after the
appeal is determined; or

(ii) if the motion is denied, continue until five days after the
movant is served with the order of denial with notice of its entry.

(f) Proceedings after stay. A stay of enforcement shall not prevent
the court of original instance from proceeding in any matter not
affected by the judgment or order appealed from or from directing the
sale of perishable property.

(g) Appeals in medical, dental or podiatric malpractice judgments. In
an action for medical, dental or podiatric malpractice, if an appeal is
taken from a judgment in excess of one million dollars and an
undertaking in the amount of one million dollars or the limit of
insurance coverage available to the appellant for the occurrence,
whichever is greater, is given together with a joint undertaking by the
appellant and any insurer of the appellant's professional liability
that, during the period of such stay, the appellant will make no
voidable transaction as described in article ten of the debtor and
creditor law, the court to which such an appeal is taken shall stay all
proceedings to enforce the judgment pending such appeal if it finds that
there is a reasonable probability that the judgment may be reversed or
determined excessive. In making a determination under this subdivision,
the court shall not consider the availability of a stay pursuant to
subdivision (a) or (b) of this section. Liability under such joint
undertaking shall be limited to voidable transactions made by the
appellant subsequent to the execution of such undertaking and during the
period of such stay, but nothing herein shall limit the liability of the
appellant for voidable transactions pursuant to article ten of the
debtor and creditor law or any other law. An insurer that pays money to
a beneficiary of such a joint undertaking shall thereupon be subrogated,
to the extent of the amount to be paid, to the rights and interests of
such beneficiary, as a judgment creditor, against the appellant on whose
behalf the joint undertaking was executed.