CPLR 5519: Automatic and Discretionary Stays Pending Appeal

Filing a notice of appeal in New York does not, by itself, stop the winning party from enforcing the judgment against you. Unless a stay is in place, a judgment creditor can restrain your bank accounts, docket the judgment as a lien against your real property, serve income executions, and dispatch the sheriff to levy on assets — all while your appeal is pending. By the time the Appellate Division rules in your favor, the practical damage may already be done.

CPLR 5519 is the statute that governs stays pending appeal in New York civil practice. It creates two distinct pathways: automatic stays under CPLR 5519(a), which take effect without any court order when specific statutory conditions are met, and discretionary stays under CPLR 5519(c), which require a motion and a persuasive showing to the court. Understanding which pathway applies to your case — and executing it correctly and quickly — is often the difference between preserving the status quo and watching your assets disappear before the appeal is decided.

What a CPLR 5519 Stay Actually Does — and Does Not Do

A stay under CPLR 5519 halts "all proceedings to enforce the judgment or order appealed from." That language is critical and frequently misunderstood. The stay operates against enforcement mechanisms — executions, levies, restraining notices, contempt applications to compel compliance, and similar collection or enforcement steps. It does not undo the judgment, and it generally does not suspend the self-executing effects of an order.

For example, if an order declares that a contract is terminated, or dissolves a preliminary injunction, those consequences flow automatically from the order itself — there is nothing to "enforce," so a stay of enforcement proceedings may accomplish little. In those situations, appellants often need affirmative interim relief from the Appellate Division, such as an injunction pending appeal under CPLR 5518, rather than a bare enforcement stay. An experienced appellate practitioner will diagnose which form of relief your situation actually requires before drafting a single paper.

The Automatic Stay Under CPLR 5519(a)

CPLR 5519(a) provides that service of a notice of appeal (or an affidavit of intention to move for permission to appeal) stays all enforcement proceedings without a court order if one of seven enumerated conditions is satisfied. The most important categories are the following.

CPLR 5519(a)(1): Government Appellants

When the appellant is the State of New York, a political subdivision of the State, an officer or agency of the State or a subdivision, service of the notice of appeal alone triggers an automatic stay. No undertaking is required. This is why judgments against municipalities, state agencies, and public officers are routinely frozen the moment the government serves its notice of appeal — and why prevailing parties in those cases must move under CPLR 5519(c) if they want the stay vacated or limited.

CPLR 5519(a)(2): Money Judgments — the Undertaking Requirement

This is the provision private litigants use most often. Under CPLR 5519(a)(2), where the judgment or order directs the payment of a sum of money, enforcement is automatically stayed when the appellant serves the notice of appeal and gives an undertaking (typically a surety bond) in the full amount of the judgment, conditioned on payment if the judgment is affirmed or the appeal dismissed.

Worked example: Suppose a money judgment for $750,000 is entered against your company in Supreme Court, and the plaintiff serves the judgment with notice of entry on March 3. Two deadlines now run in parallel. First, under CPLR 5513, you have 30 days from that service to take the appeal — a deadline explained in detail on our page about the CPLR 5513 30-day appeal deadline. Second, nothing stops enforcement in the meantime: the plaintiff can serve restraining notices on your banks the day after entry. To obtain the automatic stay, you would (1) file and serve the notice of appeal within the 30-day window, and (2) obtain and file a surety undertaking for the full $750,000, serving notice of the undertaking on the plaintiff. The moment both conditions are met, the stay is in effect by operation of law — no motion, no court appearance, no judicial discretion involved. If the plaintiff has already served restraining notices before your bond is in place, those enforcement steps taken in the gap are generally valid, which is why speed matters enormously.

CPLR 5519(a)(3) Through (a)(6): Other Automatic Stay Categories

CPLR 5519(a)(6) deserves special mention because it is the workhorse in appeals from judgments of possession — including commercial holdover and ejectment cases. A tenant or occupant appealing a possessory judgment can remain in the premises during the appeal by obtaining a court order fixing the undertaking amount (usually keyed to fair-market use and occupancy) and posting it. Because the court must fix the amount, this "automatic" stay actually requires an application, and it should be made immediately after entry of judgment.

What the Automatic Stay Does Not Cover

Several categories of orders fall outside CPLR 5519(a) entirely. Orders granting injunctive relief, orders compelling a party to perform an act (other than paying money or delivering property covered by the enumerated subdivisions), and many discovery and interlocutory orders are not subject to any automatic stay. For those, the only route is a discretionary stay under CPLR 5519(c).

CPLR 5519(b): Judgments Covered by Insurance

CPLR 5519(b) supplies a specialized mechanism where the appellant's liability is covered by an insurance policy. In substance, the insurer may procure the stay by giving an undertaking measured against the policy limits, with the appellant responsible for securing any portion of the judgment exceeding coverage. In personal injury and property damage litigation, this provision often determines who posts what: the carrier bonds up to its limit, and the insured must independently address any excess exposure. Coordinating between insured and insurer at this stage is a frequent source of malpractice-level errors, because a bond covering only the policy limits leaves the excess portion of the judgment fully enforceable against the insured's personal assets.

Discretionary Stays Under CPLR 5519(c)

Where no automatic stay is available — or where posting a full undertaking is financially impossible — CPLR 5519(c) authorizes either "the court from or to which an appeal is taken or the court of original instance" to stay enforcement pending appeal, on such terms as the court directs. This means the motion can be made to the trial court or directly to the Appellate Division, and strategic considerations often dictate the choice of forum. A motion to the same justice who just ruled against you may face an uphill climb; the Appellate Division brings fresh eyes but its own procedural demands.

Factors Courts Consider

The statute itself articulates no test, but New York courts evaluating discretionary stay applications consistently weigh:

• The merits of the appeal — whether the appellant presents substantial, arguable issues rather than a delay tactic;
• Harm to the appellant absent a stay, particularly harm that a later reversal could not undo (loss of a business, transfer of unique property, disclosure of privileged material);
• Prejudice to the respondent from delayed enforcement, including the risk that assets will dissipate;
• The balance of equities and preservation of the status quo pending appellate review.

Courts routinely condition discretionary stays on terms: a partial undertaking, expedited perfection of the appeal, periodic payments, or restrictions on asset transfers. A well-crafted motion anticipates these conditions and proposes reasonable terms proactively, which signals good faith and gives the court a ready-made framework for granting relief. The strength of your underlying grounds for appeal should be presented concisely but concretely — a stay motion is often the court's first impression of the appeal itself.

Procedure and Interim Relief

In urgent situations — a sheriff's sale scheduled next week, an imminent eviction, a bank restraint choking off payroll — the standard motion timeline is too slow. The practice in the Appellate Division is to seek an interim stay by order to show cause, which a single justice can grant pending determination of the full stay motion by a panel. Each Appellate Division department has its own rules governing emergency applications, including requirements for advance notice to opposing counsel and supporting papers. In genuinely emergent circumstances, an interim stay can be obtained within a day. The application must be precise: the justice will want to know exactly what enforcement step is imminent, what irreparable harm will follow, and what security the appellant offers.

How Long the Stay Lasts: CPLR 5519(d) and (e)

A CPLR 5519 stay is not indefinite. Two provisions govern its duration beyond the initial appeal:

• CPLR 5519(d) continues the effect of an undertaking on a further appeal, so an appellant taking the case from the Appellate Division to the Court of Appeals does not necessarily need a new bond.
• CPLR 5519(e) addresses what happens after the Appellate Division affirms or modifies. The stay continues for five days after service of the order of affirmance with notice of entry. If, within those five days, the appellant serves a notice of appeal to the Court of Appeals or moves for permission to appeal, the stay continues until five days after the motion is decided. This narrow window is unforgiving: miss it, and enforcement can resume immediately even though you intend to seek further review. Our page on the motion for leave to appeal explains how that application works and why it must be teed up before the Appellate Division rules if a continued stay is essential.

Separately, CPLR 5519(c) empowers the court to vacate, limit, or modify any stay — including an automatic one. Respondents facing a government appellant's no-bond stay under 5519(a)(1), or who believe an undertaking is inadequate, can and do move to lift or condition the stay. Appellants must be prepared to defend the stay they obtained.

The Cost of the Undertaking

Appeal bonds are issued by surety companies for an annual premium, commonly in the range of one to two percent of the bond amount, and sureties almost always require collateral — cash, a letter of credit, or other liquid security — often for the full face amount. For a $750,000 judgment, that means roughly $7,500 to $15,000 in annual premium plus the collateral obligation. Appellants who cannot collateralize a full bond should consider a CPLR 5519(c) motion proposing a partial undertaking or alternative security, supported by financial documentation showing that a full bond is unattainable. Courts have discretion to accept less than full security where the equities warrant.

Coordinating the Stay With the Rest of Your Appeal

A stay buys time; it does not decide the appeal. Two practical points follow. First, the stay strategy must be synchronized with the jurisdictional steps of the appeal itself — the notice of appeal must be timely filed and served, and the record and briefs must be assembled and filed within the deadlines set by the applicable Appellate Division department. If the appeal is dismissed for failure to perfect, the stay evaporates with it, and the undertaking becomes payable. Our discussion of perfecting an appeal in New York covers those deadlines and requirements. Second, courts granting discretionary stays frequently condition them on expedited perfection — meaning the price of your stay may be a compressed briefing schedule. Appellants should budget for that possibility from the outset.

A complete timeline, using the example above: Judgment entered and served with notice of entry March 3. Notice of appeal filed and served March 10 (well within the 30-day CPLR 5513 window). Surety bond for $750,000 obtained and filed March 12; automatic stay under CPLR 5519(a)(2) effective that day. Appeal perfected within the department's deadline. Appellate Division affirms; order with notice of entry served November 14. Under CPLR 5519(e), the appellant has until November 19 to move for leave to appeal to the Court of Appeals to keep the stay alive. The motion is served November 18; the stay continues until five days after the motion is determined.

Common Mistakes That Destroy Stays

• Assuming the notice of appeal alone stays enforcement. Except for government appellants, it does not.
• Leaving a gap between entry of judgment and posting the bond, during which restraining notices and liens attach and remain effective.
• Bonding only the insured portion of a judgment and leaving excess liability exposed.
• Missing the five-day window under CPLR 5519(e) after affirmance.
• Seeking a stay of enforcement when the order is self-executing, where CPLR 5518 injunctive relief was the correct vehicle.
• Letting the appeal lapse for failure to perfect, which terminates the stay and triggers liability on the undertaking.

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