Opinion
March 23, 1999
Appeal from the Supreme Court, New York County (Barry Cozier, J.).
Plaintiff's filing of a bond and a notice of intention to appeal to the Court of Appeals from a nonfinal order of this Court that did not direct the payment of a sum of money ( 230 A.D.2d 312, lv dismissed 91 N.Y.2d 887) did not operate to effect an automatic stay pursuant to CPLR 5519 (a) (2) ( see, McCain v. Koch, 68 N.Y.2d 713). Thereafter, defendant's counterclaim for attorneys' fees was severed, and, pursuant to this Court's non-final order, a judgment was entered in defendant's favor on the main breach of contract claim, which plaintiff did not appeal, although he could have appealed it directly to the Court of Appeals (CPLR 5602 [a] [1] [ii]; see, Matter of Klonowski v. Department of Fire, 58 N.Y.2d 398, 402, n 3; Michigan Natl. Bank-Oakland v. American Centennial Ins. Co., 224 A.D.2d 319, affd 89 N.Y.2d 94). Having failed to appeal such judgment, plaintiff is bound thereby, and there is thus no basis for granting a discretionary stay pending entry of a final judgment incorporating the attorneys' fees, a second appeal to this Court and a second motion for leave to appeal to the Court of Appeals. Although plaintiff's appeal lacks merit, it was not frivolous to seek at least a discretionary stay of enforcement from this Court, particularly where plaintiff had posted a bond in the full amount of the judgment plus interest, and, accordingly, defendant's request for sanctions is denied.
Concur — Ellerin, P. J., Lerner, Andrias and Saxe, JJ.