Stay of enforcement of an order of judgment pending appeal
The service of a notice of appeal or an affidavit of intention to move for permission to appeal does not automatically stay the execution or enforcement of a judgment dissolving a marriage or any other order or judgment made in a matrimonial action.1 CPLR §5519(a), provides for automatic stays. CPLR 5519 (a)(1) provides, among other things, that 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 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.2 CPLR 5519 (a)(2), provides 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 the judgment or order requires the payment of a sum of money, and an undertaking is filed with the Clerk of the Court of original instance in that amount.3 It, thus, appears that a stay of enforcement of payment of a distributive award, counsel fees4 or a money judgment may be obtained by filing an undertaking in the amount of the award or judgment. It has been stated that while a permanent maintenance award may be the subject of a stay secured by an undertaking,5 the payment of temporary alimony or support is not stayed by the filing of an undertaking6 The same rule should apply to payments of temporary maintenance,7 and child support. 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 the judgment or order requires the payment of a sum of money in fixed installment payments and an undertaking is filed in a sum fixed by the Court of original instance.8 There is no stay of interest where money is placed in escrow in order to obtain a stay of execution of the judgment pending appeal. In the absence of a tender or payment of a special deposit, interest on a money judgment continues to accrue at the statutory rate until the judgment is satisfied, barring any inequitable or dilatory conduct on the part of the judgment creditor.9 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 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, or an undertaking in a sum fixed by the court of original instance is given.10 There is also a stay of enforcement where 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.11 There will be a stay of enforcement of an order or judgment pending appeal or the determination of a motion for permission to appeal where the appellant or moving party is in possession or control of real property which the judgment or order appealed from 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 is affirmed, the 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.12 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 the judgment or order directs the performance of two or more of the acts specified in CPLR §5519(a) (2) through (6) and the appellant or moving party complies with each applicable subparagraph. In such case he will have a stay of the entire order or judgment pending the appeal or determination of a motion for permission to appeal.13 The Appellate Division, or the court from which an appeal is taken,14 may vacate, limit or modify any automatic stay imposed by CPLR §5519(a).15 A stay may also be obtained, on motion, from the Court of original instance or the Court from or to which the appeal is taken.16 The granting of a motion for a stay is discretionary with the Court, and it will not be granted unless the Court is convinced that the appeal has merit. The Court, in granting the application for a stay or other interim relief, may condition the stay on payment of a fixed amount of support, payment of counsel fees, permitting visitation, non-removal of the child from the state, the posting of security or perfecting the appeal by a date certain. Usually, when a stay is granted by the Appellate Division of an order or judgment directing maintenance or child support payments, the Court will condition the stay upon the regular payment of a lesser amount17 and will direct that the appeal be placed on the calendar for the next term of the Court. Where the judgment or order appealed from is affirmed or modified, the stay continues until 5 days after service upon the appellant of the order of affirmance or modification with notice of entry in the court to which the appeal was taken.18 The moving papers submitted to the Appellate Division in support of a motion for a must convince the Court of the necessity for an immediate stay in that there will otherwise be irreparable injury and demonstrate that the appeal is meritorious.
4 In Wechsler v. Wechsler, 8 Misc. 3d 328, 329, 797 N.Y.S.2d 844, 845 (Sup 2005) the Supreme Court vacated the automatic stay which the defendant obtained by filing a notice of appeal and posting $475,000 in cash, the amount of the counsel fee award, with the County Clerk. The court had rendered an interim order directing defendant to pay $475,000 toward the legal and professional fees already incurred by plaintiff in the divorce action. At the time the fees were awarded, the case was mid-trial, with 25 days of testimony having already been completed. Pursuant to CPLR §5519(a)(2), posting the amount of the award with the County Clerk entitled defendant to an automatic stay of the court's order, pending his prosecution of the appeal. In vacating the stay the court indicated that the case presented a quintessential scenario, which concerns both trial and appellate courts, about the outcome a divorce litigation being influenced by one party's greater ability to bankroll it. By taking advantage of the automatic stay provision in CPLR §5519(a) defendant did indirectly what he could not do directly, that is, prevent the plaintiff from receiving interim professional fees. Since the automatic stay provision wass completely unnecessary to protect defendant's rights, even were he to succeed on appeal, and it greatly prejudiced plaintiff to have to wait for the money awarded, the stay was vacated. In Karg v. Kern, 125 A.D.3d 527, 4 N.Y.S.3d 184 (1st Dep't 2015) the Appellate Division held, inter alia, that Supreme Court properly vacated the automatic stay of the April 3, 2014 order obtained by defendant's posting of an undertaking to secure his obligation to pay interim counsel fees (CPLR 5519[c]; Wechsler v. Wechsler, 8 Misc. 3d 328, 797 N.Y.S.2d 844 (Sup 2005)). The court was appropriately concerned that defendant was taking advantage of the automatic stay to prevent plaintiff from receiving interim counsel fees, thereby preventing an even playing field in the litigation. Further, defendant could recoup the counsel fee award from plaintiff's share of equitable distribution, while plaintiff would be severely prejudiced if she were forced to wait months to obtain the interim award.
5 McKiernan v. McKiernan, 223 A.D.2d 917, 636 N.Y.S.2d 477, 478 (3d Dep't 1996). Galusha v. Galusha, 108 N.Y. 114, 117, 15 N.E. 63 (1888) (“The claim of the defendant is that the judgment in this action is one for a sum of money or directing the payment of a sum of money, and that therefore the execution of the judgment was stayed by the undertaking given under section 1327 of the Code. If the judgment simply directed the payment of a sum of money, the contention of the defendant would undoubtedly be right. But it not only required the defendant to pay the alimony in installments, but also required him to execute and deliver to the plaintiff a mortgage upon his real estate as security for the payment of the alimony. Therefore, the undertaking which he gave falls far short of covering the whole judgment.”). In Bauman v. Bauman, 209 A.D. 238, 239, 204 N.Y.S. 265 (1st Dep't 1924) the Appellate Division stated that on the 18th of September, 1923, judgment in favor of the plaintiff was entered. After the separation trial the court awarded the plaintiff $200 per month alimony, the first payment to be made in August, 1923. Defendant served notice of appeal from the judgment and filed an undertaking, as required by law, and procured a stay of all proceedings under the judgment pending the determination of the appeal.
6 Greene v. Greene, 71 Misc. 2d 708, 336 N.Y.S.2d 560 (Sup 1972), order modified on other grounds, 41 A.D.2d 645, 340 N.Y.S.2d 664 (2d Dep't 1973).
7 In McKiernan v. McKiernan, 223 A.D.2d 917, 636 N.Y.S.2d 477, 478 (3d Dep't 1996) in addressing defendant's first motion seeking to fix the amount of an undertaking pursuant to CPLR 5519(a)(3) to stay the pendente lite awards pending appeal, the Appellate Division found that Supreme Court appropriately denied the relief requested. Indisputably, CPLR 5519 allows a party to automatically stay proceedings to enforce a judgment or order directing the payment of a sum of money, to be paid in fixed installments, upon the giving of an undertaking in a sum fixed by the court (see, CPLR 5519[a][3]). While a permanent maintenance award may be the subject of a stay secured by an undertaking (Galusha v. Galusha, 108 N.Y. 114, 15 N.E. 63 (1888); Bauman v. Bauman, 209 A.D. 238, 204 N.Y.S. 265 (1st Dep't 1924)), even in those instances an allowance is made in the form of temporary maintenance during the pendency of the appeal. Hence, due to the nature of a temporary maintenance award, the giving of an undertaking cannot be used to wholly stay a party's obligation to continue making interim payments (see, Finkelstein v. Finkelstein, 286 A.D. 965, 144 N.Y.S.2d 416 (1st Dep't 1955); Greene v. Greene, 71 Misc. 2d 708, 710, 336 N.Y.S.2d 560 (Sup 1972), order modified, 41 A.D.2d 645, 340 N.Y.S.2d 664 (2d Dep't 1973)).
9 In Purpura v. Purpura, 261 A.D.2d 595, 691 N.Y.S.2d 68 (2d Dep't 1999), appeals were taken in a post dissolution proceeding from a judgment of the Supreme Court awarding interest to wife on distributive award and certain stock dividends. The Appellate Division affirmed in part and reversed in part, holding that: accrual of interest on wife's distributive award at statutory rate of 9% was not tolled by husband's posting of undertaking in order to secure a stay pending appeal, despite the wife's cross-appeal. The judgment of divorce, as amended, provided that the plaintiff was entitled to 35% of the value of certain property received by the defendant from Bear, Stearns & Company. In order to obtain a stay of enforcement of the judgment and the order pending appeals therefrom, the defendant gave an undertaking, and placed 31,733 shares of Bear, Stearns & Company stock in escrow. By law, interest was accruing on the plaintiff's distributive award at the statutory rate of 9%. The accrual of this interest was not tolled when the defendant posted an undertaking in order to secure a stay pending appeal. There is no statutory exemption of interest for money placed in escrow in order to obtain a stay of execution of the judgment pending appeal. Hence, in the absence of a tender or payment of a special deposit, interest on a money judgment continues to accrue at the statutory rate until the judgment is satisfied, barring any inequitable or dilatory conduct on the part of the judgment creditor.
17 In Shugar v. Shugar, 147 A.D.2d 380, 537 N.Y.S.2d 544 (1st Dep't 1989), the Appellate Division granted a motion for a stay of a pendente lite order which directed that the husband pay the mortgage charges since the wife purchased the apartment in her own name. He was directed to pay half of that maintenance charges, utilities and insurance. In Bauman v. Bauman, 209 A.D. 238, 239–40, 204 N.Y.S. 265 (1st Dep't 1924) the Appellate Divisoin awarded $100 temporary alimony and $250 counsel fee to plaintiff to enable her to properly prepare for and respond to the appeal where an automatic stay of alimony had been obtained.
18 CPLR §5519(e). CPLR 5519(e) provides that where an appeal is thereafter taken or a motion for permission to appeal is made, before the expiration of 5 days, the stay continues until five days after service of the notice of the entry of the order determining the appeal or motion. If the motion is granted the stay continues until five days after the appeal is determined. If the motion is denied the stay continues until five days after the movant is served with the order of denial with notice of its entry.