2 No. 17
James Summerville,
Respondent,
v.
City of New York,
Appellant.
_________________________________________________________________
2002 NY Int. 27
March 19, 2002
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
John Hogrogian, for appellant.
Brian J. Shoot, for respondent.
Victor Paladino, for State of New York, amicus curiæ.
New York State Trial Lawyers Association, amicus curiæ.
_________________________________________________________________
LEVINE, J.:
CPLR 5519 consolidates all of the provisions of the State's civil
procedure code regarding stays pending appeal. This appeal requires us
to address the interplay between two subdivisions of CPLR 5519 --
CPLR 5519(a) and (e). CPLR 5519(a) (1) grants an automatic stay
to the State, and its political subdivisions, their agencies and
officers, pending an appeal from a judgment or order. CPLR 5519(e)
provides that a stay will be continued pending resolution of a
second-level appeal or until a motion for permission to take such an
appeal is denied, provided the governmental appellant serves and files
its notice of appeal or motion for leave to appeal with notice of
entry within five days after service of an adverse order.
The dispositive question is whether a governmental appellant obtains a
new automatic stay under CPLR 5519(a) when it appeals or files a
motion for leave to appeal from an adverse order of an intermediate
appellate court, even though it allowed its original automatic stay to
lapse by failing to serve and file as required by CPLR 5519(e) to
continue that stay. We answer that question in the affirmative and,
therefore, hold that although the City failed to take the steps needed
to continue its original automatic stay under CPLR 5519(e) , it
obtained a new automatic stay when it moved for leave to appeal to
this Court.
SNIPPETS:
This opinion is uncorrected and subject to revision before publication in the New York
CPLR 5519 consolidates all of the provisions of the State's civil procedure code regarding
CPLR 5519grants an automatic stay to the State, and its political subdivisions, their
CPLR 5519provides that a stay will be continued pending resolution of a second-level appeal
The dispositive question is whether a governmental appellant obtains a new automatic stay
We answer that question in the affirmative and, therefore, hold that although the City failed
Following a jury trial and reduction of the damages award by the trial court (to which
The Appellate Division modified the judgment only by deleting the provisions that awarded
The order further provided that "n the event that the plaintiff so stipulates, then the
In March, plaintiff stipulated to accept the reduced damages award and, on July 6, 1999, the
CPLR 5043 required the City to post the annuity contract as security "within thirty days
On August 16, 1999, while the City's motion for leave to appeal was still pending before the
Section 5044 provides that if a structured judgment debtor "fails for any reason to make a
CPLR 5519, in turn, provides for the continuation of a stay for five days after service upon
Rather, subdivision merely provides for the "continuation of stay," allowing an appellant to
Nothing in subdivision precludes a governmental entity whose original automatic stay has
The above interpretation is fully consistent with our prior treatment of these stay
), when the City Planning Commission requested a stay pending resolution of its motion for
the City had 30 days from entry of the amended judgment to tender the annuity contract.
While Article 50-B requires the tender of an annuity contract within 30 days of entry of a
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