February 17, 2025
The timeline of litigation is not always linear. Events and rulings can make proceeding to trial strategically unfavorable. Some of those events and rulings may be undone on an appeal, but there is not enough time to appeal. The CPLR recognizes that the Appellate Division can grant stays, and the rules of the Appellate Division outline the general procedures for making the motions. But there are few, if any, sources that explain what the Appellate Division looks for when determining if it should grant a stay motion. Having gone through the process dozens and dozens of times, I have been able to discern one overarching pattern: the more unusual the case, the more likely the odds of getting a stay. If your argument is simply that the trial court incorrectly found that there was a question of fact warranting the denial of summary judgment or made a run-of-the-mill ruling that you disagree with, the odds are lower that you will get a stay. If your argument is that the trial court deviated from bedrock procedural rules or issued a ruling on a topic of first impression, then your odds of getting a stay increase.
Before we get into how to make the case interesting, there are a few procedural points that are worth discussing. First, if you can avoid the need for an avoid making an emergency application, do so. Many times, it is unavoidable. Second, if at all possible, perfect your appeal before you move for a stay. Taking this step will signal to the Appellate Division that you are serious about prosecuting the appeal. If you can’t perfect the appeal before moving for a stay, tell the court that you will perfect your appeal quickly. Third, make sure the Appellate Division has jurisdiction to hear your appeal. Are you appealing an order that was made because of a motion made on notice? Did the judge make a sua sponte ruling? If the order at issue is appealable as of right, then the filing of a Notice of Appeal gives the Appellate Division jurisdiction to hear the case and issue stay orders. If it is not, your motion must ask for permission to appeal.
The Appellate Division’s authority to issue a stay comes from CPLR 5519(c). The statute does not provide much guidance other than giving the court the authority to stay proceedings to enforce a judgment or order pending appeal. The statute does not provide the Appellate Division with the authority to stay parts of the case not related to the enforcement of a specific judgment or order, like a trial pending appeal. Yet, the Appellate Division has the inherent authority to issue such a stay. Not only is there little statutory guidance, but there is also even less guidance from case law. The Appellate Division does not issue reported decisions on stay motions. Instead, the Appellate Division issues unreported slip opinions that usually say nothing more than the court either denied or granted the motion. This lack of guidance from both statutory and case law sources makes it difficult for practitioners who are not familiar with the process of stay motions to get up to speed quickly.
So, when is the Appellate Division most likely to grant a stay? In my experience, it is when the case presents some sort of novel question of law. For example, in Fishon v Richmond University Med. Ctr. (171 AD3d 873 [2d Dept 2019]), the trial court granted a motion for a directed verdict during jury selection because the defendant allegedly destroyed evidence even though the court previously denied a motion for discovery sanctions on this issue. The day after it happened, and while jury selection was on going, I went to the Appellate Division asking for an emergency stay. The Appellate Division granted an emergency stay and then a full stay pending appeal. Ultimately, the Appellate Division determined that the trial court’s order was incorrect and reversed. The reason a stay was granted was not merely because the trial court’s order was wrong. It was because the trial court’s error deprived the defendant of a right to a fair trial. The rules of the game were not followed.
The best odds of getting a stay are knowing what the Appellate Division is looking for and making your case fit in that mold. Appellate attorneys who dedicate their careers to appellate practice not only have a deep knowledge of the procedure but also understand the Appellate Division’s perspective when analyzing cases. This understanding is crucial for your success, as it allows you to present your case in a way that resonates with the Appellate Division's decision-making process, making you feel more informed and prepared.
If you need assistance with your appellate case or have any questions about stay motions, don't hesitate to reach out to the Law Offices of Seth M. Weinberg, PLLC. Our experienced team is here to help you navigate the complexities of appellate practice and increase your chances of success. Contact us today to schedule a consultation and take the first step towards achieving a favorable outcome in your case.