Spillman v. City of Rochester

Motion to vacate automatic stay denied as unnecessary. Memorandum: The motion of the defendant City of Rochester to dismiss plaintiff’s complaint was denied and the city appealed. Plaintiff now moves before us to vacate what it perceives to be an automatic stay effected by the city’s appeal pursuant to CPLR 5519 (a) (1). Plaintiff contends that vacating the stay is necessary to compel the city to answer the complaint; that pursuant to CPLR 3211 (f), the city’s time to answer has been extended until 10 days after the service of notice of entry of the order denying the motion to dismiss the complaint and that the city’s appeal has stayed the effect of the order.

The motion is denied as unnecessary. The only effect under CPLR 5519 (a) of the city’s appeal was to stay "all proceedings to enforce the judgment or order appealed from”; the appeal did not otherwise stay the effect of the order (see, Bloomfield Bldg. Wreckers v City of Troy, 41 NY2d 1102, 1103; Dublanica v Rome Hosp./Murphy Mem. Hosp., 126 AD2d 977; Matter of Gordon v Town of Esopus, 107 AD2d 114, 115, lv denied 65 NY2d 609; Christian v Village of Herkimer, 5 AD2d 62, 65, affd 5 NY2d 818). Present—Dillon, P. J., Doerr, Boomer, Pine and Lawton, JJ.