Shorten v. City of White Plains

Full title: ROBERT SHORTEN et al., Respondents, v. CITY OF WHITE PLAINS, Appellant

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 6, 1995

216 A.D.2d 344 (N.Y. App. Div. 1995)

631 N.Y.S.2d 519

Opinion

June 6, 1995

Appeal from the Supreme Court, Westchester County.

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 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 A.D.2d 1014; Walker v. Delaware Hudson R.R. Co., 120 A.D.2d 919; cf., Bloomfield Bldg. Wreckers v. City of Troy, 41 N.Y.2d 1102; Spillman v. City of Rochester, 132 A.D.2d 1008). Accordingly, there is no stay of trial for this Court to vacate. Sullivan, J.P., Pizzuto, Santucci and Goldstein, JJ., concur.