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JURISDICTION: NEW YORK

This template applies to New York State courts (Supreme, Family, Appellate Division) governed by CPLR, DRL, FCA, and 22 NYCRR.

MOTION FOR STAY PENDING APPEAL

[NY][CPLR] Emergency Stay Pursuant to CPLR §5519

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Legal Standard - You Must Prove ALL Four Elements

To obtain stay, you MUST demonstrate:

1. Likelihood of success on appeal

   • Not "guaranteed to win" but "substantial probability of reversal"
   • Clear legal error by trial court
   • Cite cases where similar errors were reversed

2. Irreparable injury without stay

   • Harm that can't be compensated by money
   • Examples: loss of custody, forced sale of home, constitutional violation
   • Must be imminent and concrete, not speculative

3. Balance of equities favors stay

   • Your harm from enforcement > their harm from delay
   • Consider: can you post undertaking to protect their interests?

4. Public interest (if applicable)

   • Maintaining constitutional rights
   • Child welfare (custody cases)
   • Usually neutral factor

High bar to meet: Courts disfavor staying judgments. You need strong showing on all elements.

Timing and Procedure

TIMING CRITICAL:

1. File notice of appeal FIRST (required before stay motion)
2. Move for stay immediately (before enforcement occurs)
3. Automatic stay option (CPLR §5519(a)(1)):
   • If you serve notice of appeal within 30 days AND
   • File undertaking (bond) in required amount
   • Automatically stays money judgments (not custody, injunctions, etc.)

WHERE TO MOVE:

• Trial court first (CPLR §5519(a)(1)) - faster, same judge who decided case
• Appellate Division (CPLR §5519(a)(2)) - if trial court denies or you skip trial court
• Both: Can move in trial court first, then Appellate Division if denied

NOTICE REQUIREMENTS:

• Must give reasonable notice to all parties
• Emergency/ex parte stays rarely granted without notice
• Show good cause if seeking stay on shortened time

NOTICE OF MOTION FOR STAY PENDING APPEAL

PLEASE TAKE NOTICE that upon the annexed affidavit/affirmation of {{Name}}, dated {{date}}, and the {{memorandum of law / exhibits / other supporting papers}} submitted herewith, movant will move this Court at {{Courthouse Address}}, {{Courtroom}}, on {{date}} at {{time}} in the {{a.m./p.m.}}, or as soon thereafter as counsel can be heard, for an order pursuant to CPLR §5519:

1. Staying enforcement of the {{order/judgment}} dated {{date}} pending determination of movant's appeal to the Appellate Division, {{Department}} Department;

2. {{If applicable: Restoring status quo / Enjoining specific action / Maintaining custody / etc.}} pending appeal;

3. Granting such other and further relief as the Court deems just and proper.

PLEASE TAKE FURTHER NOTICE that movant filed a Notice of Appeal on {{date}} (Exhibit A), which is currently pending before the Appellate Division.

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Dated: {{Date}}

Respectfully submitted,

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{{Your Signature}} {{Your Name}} {{Pro Se / Attorney for Movant}} {{Address}} {{Phone}} {{Email}}

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TO: {{Opposing Counsel/Party}} {{Address}}

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AFFIDAVIT/AFFIRMATION IN SUPPORT

STATE OF NEW YORK ) ) ss.: COUNTY OF {{COUNTY}} )

{{Name}}, being duly sworn/affirms under penalty of perjury, deposes and says:

I. BACKGROUND

1. I am the {{movant / attorney for movant}} in this action and have personal knowledge of the facts stated herein.

2. On {{date}}, this Court issued an {{order/judgment}} {{granting defendant's motion / dismissing complaint / etc.}} (Exhibit B).

3. On {{date}}, I filed a Notice of Appeal to the Appellate Division, {{Department}} Department (Exhibit A).

4. I now move for a stay of enforcement of the {{order/judgment}} pending appeal.

II. LEGAL STANDARD

5. CPLR §5519(a)(1) authorizes this Court to stay enforcement of a judgment or order "upon such terms as may be just."

6. To obtain a stay, movant must demonstrate:

   • Likelihood of success on the merits of the appeal
   • Irreparable injury absent a stay
   • Balance of equities favors a stay
   • Public interest (if applicable)

William Karl Realty Corp. v. 420 W. 204th St. Realty LLC, 132 A.D.3d 561 (1st Dep't 2015); Doe v. Axelrod, 73 N.Y.2d 748 (1988).

III. LIKELIHOOD OF SUCCESS ON APPEAL

7. Movant has a substantial likelihood of success on appeal because:

[Provide specific appellate issues with supporting law]

Issue 1: {{e.g., "The trial court erred in granting summary judgment where genuine issues of material fact remain"}}

Analysis: {{Brief explanation of why this is likely to be reversed. Cite cases where similar errors led to reversal.}}

Issue 2: {{e.g., "The trial court violated CPLR §2219(a) by failing to state grounds for decision"}}

Analysis: {{Explanation + authority}}

Issue 3: {{Additional issues}}

8. {{Supporting case law showing similar issues resulted in reversal}}

9. Absent the complained-of errors, the outcome would have been different.

IV. IRREPARABLE INJURY

10. Absent a stay, movant will suffer irreparable injury that cannot be compensated by money damages:

**{{Describe specific irreparable harms - e.g.:

• "Loss of parental rights/custody pending appeal (cannot be remedied if appeal succeeds)"
• "Enforcement of judgment will force sale of property"
• "Defendant will be judgment-proof by time of appeal"
• "Constitutional rights will be violated pending review"}}**

11. These harms are imminent. Without a stay, {{specific harm will occur}}.

12. Money damages cannot remedy these harms because {{why damages are inadequate}}.

V. BALANCE OF EQUITIES

13. The balance of equities favors a stay:

Harm to Movant (if no stay):

• {{Harm 1}}
• {{Harm 2}}

Harm to Respondent (if stay granted):

• {{Minimal harm / Delay only / Can be compensated / etc.}}

14. Movant's harm is {{greater/irreversible}} while respondent's harm is {{lesser/remediable}}.

15. {{If applicable: Movant offers undertaking to protect respondent's interests.}}

VI. PUBLIC INTEREST

16. {{If applicable: The public interest favors/does not oppose a stay because {{reason - e.g., "ensuring constitutional rights are not violated pending appeal" / "maintaining stability for minor child" / etc.}}}}

VII. NO ADEQUATE ALTERNATIVE

17. No alternative remedy exists. Without a stay, the appealed {{order/judgment}} will be enforced, rendering the appeal moot or meaningless.

VIII. TERMS OF STAY

18. Movant proposes the following terms for the stay:

{{If undertaking required:

• "Movant will post undertaking in the amount of ${{X}} pursuant to CPLR §5519(a)(1)"}}

{{Other conditions:

• "Movant will perfect appeal within {{X}} months"
• "Status quo will be maintained"
• etc.}}

IX. NOTICE AND SERVICE

19. This motion is made on {{X}} days' notice to all parties. Service was made via {{method}} on {{date}}.

WHEREFORE, movant respectfully requests that this Court grant a stay of enforcement of the {{order/judgment}} pending appeal, upon such terms as the Court deems just.

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{{Your Signature}} {{Your Name}}

Sworn to before me this {{day}} day of {{month}}, {{year}}

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Notary Public

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MEMORANDUM OF LAW

I. APPLICABLE LEGAL STANDARD

CPLR §5519(a)(1) provides: "Upon an appeal from a judgment or order..., the court which rendered the judgment or made the order, or the appellate division, may stay the enforcement of the judgment or order during the pendency of the appeal upon such terms as may be just..."

Stay requires showing:

1. Likelihood of success on appeal
2. Irreparable injury absent stay
3. Balance of equities favors movant
4. Public interest (if applicable)

William Karl Realty, 132 A.D.3d 561; Doe v. Axelrod, 73 N.Y.2d 748.

II. MOVANT SATISFIES ALL ELEMENTS

A. Likelihood of Success

{{Expand on affidavit arguments. Cite cases showing similar errors led to reversal. Show this is not frivolous appeal.}}

B. Irreparable Injury

{{Expand on harms. Cite cases holding similar harms are irreparable.}}

Cases:

• Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1977) (parent-child relationship)
• Kia P. v. McIntyre, 235 F.3d 749 (2d Cir. 2000) (due process in custody)
• {{Other relevant cases}}

C. Balance of Equities

{{Compare harms. Show movant's harm outweighs respondent's.}}

D. Public Interest

{{If applicable, argue public interest in ensuring fair process, protecting constitutional rights, etc.}}

III. UNDERTAKING

{{If court requires undertaking under CPLR §5519(c), address:

• Movant's ability/willingness to post
• Appropriate amount
• Security for respondent's interests}}

IV. EXPEDITED APPEAL

Movant commits to perfecting appeal within {{timeframe}}, ensuring no undue delay.

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PROPOSED ORDER

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF {{COUNTY}}

{{Caption}}

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ORDER

Upon the motion of {{movant}}, and upon all papers and proceedings heretofore had herein, and after {{oral argument / review of papers}}, it is hereby

ORDERED that enforcement of the {{order/judgment}} dated {{date}} is STAYED pending determination of movant's appeal to the Appellate Division, {{Department}} Department; and it is further

ORDERED that {{specific relief - e.g., "custody remains with movant" / "sale of property is enjoined" / etc.}}; and it is further

ORDERED that movant shall {{post undertaking / perfect appeal within X months / other condition}}.

ENTER:

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Hon. {{Judge Name}} {{Title}}

Dated: {{Date}}

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Authority:

• CPLR §5519 (stays)
• CPLR §5519(a)(1) (automatic stay if notice of appeal served within 30 days + undertaking filed)
• CPLR §5519(c) (undertaking)
• William Karl Realty Corp. v. 420 W. 204th St. Realty LLC, 132 A.D.3d 561 (1st Dep't 2015)
• Doe v. Axelrod, 73 N.Y.2d 748 (1988)

Note: If trial court denies stay, move for stay in Appellate Division under same standard (CPLR §5519(a)(2)).