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Current Developments in the Commercial Divisions of the
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Posted: September 18, 2014

Enforcement of Judgment Not Stayed Pending Appeal When Undertaking Not Filed With County Clerk

On September 4, 2014, Justice Demarest of the Kings County Commercial Division issued a decision in Vintage Flooring & Tile, Inc. v DCM of NY LLC, 2014 NY Slip Op 51376(U), declining to recognize a stay of enforcement of a judgment under CPLR 5519(a)(2) where the defendant failed to comply with the formal requirements for an undertaking under Article 25 of the CPLR.

In Vintage Flooring, the defendant (the general contractor on a construction project at the Kings Plaza Mall in Brooklyn) brought an order to show cause seeking an automatic stay of a judgment pending appeal, under CPLR 5519(a)(2), based on a undertaking that was served on the plaintiff but never filed with the Clerk of the Court. Justice Demarest denied the motion, explaining:

Pursuant to CPLR 5519(a)(2), service upon the adverse party of a notice of appeal [for a money judgment] stays all proceedings to enforce the judgment or order appealed from where an undertaking for that sum is given. Pursuant to CPLR 2505, an undertaking together with any affidavit required by [Article 25 of the CPLR] shall be filed with the clerk of the court in which the action is triable, or, upon an appeal, in the office where the judgment or order of the court of original instance is entered, and a copy shall be served upon the adverse party. The undertaking is effective when so served and filed.

In opposition to the Order to Show Cause, petitioner argues that the respondent has not shown proof that it ever filed the Undertaking with the Kings County Clerk. The court takes judicial notice that the Undertaking was not filed with the Kings County Clerk under the present index number. As respondent has not demonstrated any proof that the Undertaking was ever filed with the clerk of the court pursuant to CPLR 2505, the Undertaking was never effective and, therefore, there was no automatic stay pursuant to CPLR 5519(a)(2).

(Internal quotations and citations omitted).

An appeal bond can buy a defendant a reprieve from enforcement of a judgment. However, as this case shows, to be effective, all the requirements of the CPLR must be satisfied.

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