Shorten v. City of White Plains

Motion by the respondents to vacate a purported automatic stay of all proceedings in this action pending the hearing and determination of an appeal from an order of the Supreme Court, Westchester County, dated November 14, 1994. Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is Ordered that the motion is denied as unnecessary, without costs of disbursements. The defendant City of White Plains, a political subdivision of the State, appealed from an order which denied its motion for summary judgment. Thereafter, the parties appeared for jury selection and were advised by the trial court that proceedings in the action were "stayed for all purposes” by virtue of the automatic stay provisions of CPLR 5519 (a) (1). The plaintiff-respondent now seeks vacatur of the perceived automatic stay and we deny the motion as unnecessary. CPLR 5519 (a) (1), in pertinent part, "stays all proceedings to enforce the judgment or order appealed from pending the appeal * * * where * * * the appellant * * * is the state or of any political subdivision of the state”. The plain language of the statute makes it clear that only "proceedings to enforce [345] the judgment or order” are stayed and not all proceedings in the action. Since the trial of this action is not a proceeding to enforce the order which denied the City’s motion for summary judgment, the statutory stay provisions of CPLR 5519 (a) (1) clearly do not operate to prevent the trial from going forward (see, Baker v Board of Educ., 152 AD2d 1014; Walker v Delaware & Hudson R. R. Co., 120 AD2d 919; cf., Bloomfield Bldg. Wreckers v City of Troy, 41 NY2d 1102; Spillman v City of Rochester, 132 AD2d 1008). Accordingly, there is no stay of trial for this Court to vacate. Sullivan, J. P., Pizzuto, Santucci and Goldstein, JJ., concur.