Usually, when one thinks of effective appellate advocacy, some obvious features come to mind: a firm grasp of the record; targeted research; clear, concise briefing; and persuasive oral argument that helps the court resolve the questions presented. And, of course, each of these ingredients is critical to success on appeal. But, as any appellate practitioner knows, combining those ingredients involves a slow, orderly churn; appeals take time. For a client that just lost at the trial level, what happens in the meantime often is as disquieting as it is paramount. The lawyer representing that client has an obligation to consider immediate measures, not just to quell those worries and contain the fallout but, sometimes, to prevent aspects of the appeal from becoming moot as the appellate process plays out.
In New York, though some statutory schemes like the Family Court Act contain certain matter-specific provisions for stays of enforcement pending appeal, CPLR 5519 is the primary, general source of authority for such stays in civil cases. The statute provides for automatic stays in limited classes of cases, such as where a governmental entity is the appellant, the appellant is insured and defended by their insurer, and where a party against which a money judgment is issued posts an undertaking (see CPLR 5519 [a]-[b]). All other cases require a motion to “the court from or to which an appeal is taken or the court of original instance,” any of which “may stay all proceedings to enforce the judgment or order appealed from pending an appeal or determination on a motion for permission to appeal” (CPLR 5519 [c]). In addition, just as the CPLR enables “the court in which an action is pending” to “grant a stay of proceedings” at any time unless proscribed by law (CPLR 2201), appellate courts may do the same—staying all or part of the trial-level proceedings pending appeal—under their “inherent authority” (e.g., Tax Equity Now NY v. City of New York, 173 AD3d 464, 465 [1st Dept 2019]; Pokoik v. Department of Health Services of County of Suffolk, 220 AD2d 13, 16 [2d Dept 1996]).
Many appellate practitioners choose against seeking stays from the courts of original instance that ruled against them and, although nothing prevents one from making successive attempts before each court, this can prove costly and time-consuming. Opting to seek the stay from the court that will hear the appeal usually is the better course. But a crucial, too-often-overlooked threshold step in this pursuit is confirming appellate jurisdiction. After all, one obviously cannot seek a stay pending an appeal the court has no authority to entertain.
Of course, our state’s Constitution and the CPLR vest our two primary appellate courts—the Appellate Division and Court of Appeals—with vastly different scopes of jurisdiction. And, since CPLR 5519 (c) enables a party to seek a stay from either Court once they have a matter pending there, a robust understanding of the differing contours between the jurisdiction of each court—in addition to the mechanics of bringing the motion—drive much of what it takes to succeed on a motion for a stay there.
Appellate Division
No motion of any kind will be entertained by the Appellate Division unless the court has jurisdiction over the appeal. Where the appeal is taken as of right, jurisdiction is established once the appealing party timely files a notice of appeal (see e.g., CPLR 5701 [a]). The Appellate Division possesses sweeping jurisdiction, as it frequently entertains appeals taken as of right under CPLR 5701 (a) (iv) and (v)—alternatively and respectively vesting jurisdiction over an appeal “from an order” that “involves some part of the merits” and “affects a substantial right” (see Richard C. Reilly, "Practice Commentaries McKinney’s Cons Laws of NY," CPLR C5701:1 [“(A)s a general rule almost anything can be appealed to the appellate division on the authority of CPLR 5701”]; [“The principal sources” of the Appellate Division’s jurisdiction “are items (iv) and (v) on the paragraph 2 list”]). Where, however, permission is required to appeal, then jurisdiction only exists when that permission is given by the judge making the order you wish to appeal or by single Justice of the Appellate Division (CPLR 5701 [c]). There is small category of dispositions from which there is no right to appeal to the Appellate Division such as: ex parte orders including sua sponte orders (Sholes v. Meagher, 100 NY2d 333, 335 [2003] [per curiam]); judgments entered upon default of the appellant (CPLR 5511); and a trial court’s denial of reargument (Slabakis v. Poyiadjis, 239 AD3d 554, 554 [1st Dept. 2025]; Commissioner of New York State Department of Transportation v. Polite, 233 AD3d 645, 646 [2d Dept 2024]).
Whether seeking a stay of enforcement under CPLR 5519 (c) or a stay of all or part of the trial-level proceedings until after the appeal is decided, the legal standards are the same. The Court of Appeals observed in Da Silva v. Musso, that “the court considering the stay application may consider the merits of the appeal” and “is duty-bound to consider the relative hardships that would result from granting (or denying) a stay” (76 NY2d 436, 443 [1990]). In practice, a court “ ‘will be influenced by any relevant factor, including the presumptive merits of the appeal and any exigency or hardship confronting any party’” (Deutsche Bank National Trust v. Royal Blue Realty Holdings, 2016 NY Slip Op 31510[U], 2016 WL 4194201 [Sup Ct, New York County 2016], quoting Reilly, "Practice Commentaries," CPLR C: 5519:4).
In bringing a motion for a stay the following resources inform the procedures that you should follow.
Articles 55 and 57 of the CPLR generally govern appeals to the Appellate Division. In 2018, all four Departments of the Appellate Division adopted uniform statewide practice rules, which are found in 22 NYCRR 1250. In addition, each Department has its own local rules which supplement Rule 1250, and they are found in 22 NYCRR Parts 600 [First Department], 670 [Second Department], 850 [Third Department], and 1000 [Fourth Department].
Most relevant here, 22 NYCRR 1250.4 governs motions. Under 22 NYCRR 1250.4 (a) and (b), all motions are “returnable at 10:00 a.m. on any Monday (or, if Monday is a legal holiday, the first business day of the week), and on such other days as the court may direct” and must be “filed with the clerk at least one week before the return date” (22 NYCRR 1250.4 [a]-[b]). The same notice and service rules that govern all motions—CPLR 2214 (b) and 2103—also govern stay motions to the Appellate Division, except that, absent good cause, answering and reply papers must be filed “by 4 p.m. of the business day preceding the day on which the motion is returnable” (22 NYCRR 1250.4 [a] [5]). The rules provide that motions are generally decided without oral argument (see 22 NYCRR 125.4 [a] [8]) and, though it rarely exercises it, the court retains discretion to hold oral argument on the motion where it is “reasonably required to enable it to ... perform efficiently its judicial functions” (Wehringer v. Brannigan, 232 AD2d 206, 207 [1st Dept. 1996]) [internal citations and quotation marks omitted]).
Of course, some cases require immediate relief while the motion for a stay is pending. Applications for such interim relief are governed by 22 NYCRR 1250.4 (b). Interim relief applications must: be presented in person unless the court excuses such appearance, and must state (inter alia): the nature of the motion or proceeding; the specific relief sought; and the names, addresses, telephone numbers and email addresses of the attorneys for all parties (22 NYCRR 1250.4 [b] [1]). The party seeking interim relief must provide “reasonable notice” to their adversary in the form of an affidavit containing the date, time, and location where the application will be presented (22 NYCRR 1250.4 [b] [2]). Responses must be filed “at or before 10:00 a.m. on the return date, and shall be served by a method calculated to place the movant and other parties to the motion in receipt thereof on or before that time” and reply papers are permitted only with the court’s permission (22 NYCRR 1250.4 [b] [3]-[4]).
Unlike the full motion, which will go before a full bench, interim relief applications are randomly assigned to one Justice, who may permit oral argument upon request by any party, as the Second and Third Departments’ local rules indicate (22 NYCRR 670.4 [a] [2]; 22 NYCRR 850.4 [b] [2]). The Justice deciding the application will determine whether any oral argument will be virtual or in-person though, post-COVID, most opt for the former.
Court of Appeals
Like in the Appellate Division, CPLR 5519 (c) governs most motions for discretionary stays pending appeal in the Court of Appeals (see e.g., Matter of Hoffman v. New York State Independent Redistricting Commission, Mot. No. 2023-600, NY Slip Op 73527 [Ct App Sept. 19, 2023]). The Court of Appeals historically has sometimes relied on some form of inherent authority to issue stays akin to the inherent authority the Appellate Division exercises from time to time (see e.g., Tax Equity Now NY v. City of New York, 173 AD3d 464, 465 [1st Dept 2019]). However, it has done so only in very limited circumstances where maintenance of its appellate jurisdiction requires continuation of the status quo and no statute vests it with the power to ward off mootness. For example, in Matter of Zybert v. Dab, the appellant had unsuccessfully sought a temporary restraining order from the Appellate Division under former Civil Practice Act § 880 and, despite lacking any authority to issue similar such orders, the court after having granted leave stayed the Appellate Division’s denial so that matters would “be kept in statu quo pending determination of the appeal” (301 NY 574, 574 [1950]).
Stays of ongoing proceedings in the Court of Appeals are far more infrequent than they are in the Appellate Division for the simple reason that, unlike the Appellate Division, which often entertains interlocutory appeals (see CPLR 5701 [a]), the Court of Appeals usually may hear appeals only from final orders and judgments (see NY Const art VI, § 3 [b]; CPLR 5601, 5602). A rare exception would be when the Appellate Division certifies a question to the court before the trial-level court issues a final order or judgment (see NY Const art VI, § [b] [4]), in which case the Court of Appeals may stay further lower court proceedings pending resolution of the certified question (see e.g., Cuomo v. New York State Commission on Ethics and Lobbying in Government, __ NY3d __, 2025 NY Slip Op 00902 at *3 n 4 [Ct App Feb. 18, 2025]).
Hence, as it true in the Appellate Division, a party seeking a stay from the Court of Appeals initially must make a showing that the court has jurisdiction to hear the appeal—a far steeper climb than in the Appellate Division. Consonantly, in the event that the party is seeking leave to appeal to the Court of Appeals, it must show that the case is worthy of a leave grant in the first place (see 22 NYCRR 500.22 [b] [4]). Parties likewise should also be prepared to show that the question(s) the case presents were properly preserved in the court of first instance—a threshold question in all matters which the court has—with some notable resistance—regarded as jurisdictional (see Sabine v. State, 43 NY3d 1015, 1017 [2024]; [Rivera, J., dissenting] [“‘Our preservation doctrine is not constitutionally compelled; it is of our own making, and we can draw it as narrowly as we wish,’” quoting Maldovan v. County of Erie, 39 NY3d 166, 190 n 9 [2022] [Wilson, J., dissenting]).
With respect to the mechanics of the motion for a stay, the court’s rules are all found in the NYCRR and are fairly straightforward. As with all other motions before the court, the party moving for a stay must make the motion returnable at the court in Albany on a Monday or, if Monday is a legal holiday, on the week’s first business day (22 NYCRR 500.21 [a]). The moving party also must file the motion and proof of service “no later than noon on the Friday preceding the return date” (22 NYCRR 500.21 [c]). Not including the date of service, the motion must provide eight days’ notice where it is personally served or served by fax, nine days if served via overnight delivery, and “at least 13 days” if served by regular mail (22 NYCRR 500.21 [b] [1]-[4]). The responding party may serve and file any answering papers with proof of service “on or before the return date” (22 NYCRR 500.21 [c]). Parties may not file reply briefs or memoranda.
The court’s rules permit parties to lodge “request(s) for emergency relief” which must “be brought on by an order to show cause” and after “contact[ing] the Clerk’s Office” (NYCRR 500.25; see also CPLR 2214 [d]). The court does not permit standalone emergency requests, however; there must be an actual matter pending before the court. Thus, all such requests must include either a notice of appeal as of right under CPLR 5601 or a motion for leave to appeal under CPLR 5602 (see 22 NYCRR 500.25). While the full court will consider whether to retain the appeal taken under CPLR 5601 and grant leave to appeal under CPLR 5602, 22 NYCRR 500.25 contemplates review of a request for emergency relief by a single “judge” who may, at their discretion, “sign the order to show cause bringing on a motion.” This is consistent with the court’s traditional understanding of its own powers (see Davis v. International Railway, 215 NY 754, 754 [1915] [“(A) (j)udge of the court has the power to grant a temporary stay pending the hearing of a motion for a permanent stay”]; e.g., Spence-Chapin Adoption Services v. Polk, 29 NY2d 650 [1971] [Fuld, Ch. J.] [denying temporary stay]).
Unlike the Appellate Division, the Court of Appeals unfortunately does not participate in or permit electronic filing. In fact, the court’s rules warn that “submissions shall not be filed by facsimile transmission or electronic mail, or other electronic transmission except when requested by the Clerk of the Court” (22 NYCRR 500.21 [c]). At the same time, the court requires parties to submit digital copies of their hard-copy filings via the portal on the court’s website no later than seven days following the return date (22 NYCRR 500.21 [i]).
One also must bear in mind that, unlike those of practically every other state, New York’s courts do not follow the “mailbox rule.” Ignorance of this harsh reality is fatal. In the Appellate Division, physical papers are not “deemed filed” until “hard copies of the submissions are received and stamped by the office of the clerk” of the appropriate court (22 NYCRR 1250.1 [c] [1] [ii]). Even though the rules of the Court of Appeals do not contain this same draconian rule, hidden within its “Technical Specifications and Instructions for Companion Filing” is a warning that uploading a document to the court’s portal does not qualify as a “filing,” and that “a document is ‘filed’ with the Clerk's Office on the date of receipt of the paper document.” Of course, since the Appellate Division participates in electronic filing, most parties filing motions in that court avoid the stress of ensuring timely receipt by opting for e-filing since “submissions filed electronically will be deemed filed as of the time copies of the submissions are transmitted to the NYSCEF site” (22 NYCRR 1250.1 [c] [1] [i]). Parties engaged in motion practice before the New York Court of Appeals, however, must—often far from Albany—endure that stress and do everything they can to ensure that the court timely receives their paper filings.
As one can see, though the sources of each appellate court’s authority to grant stays pending appeal overlap, their treatment of motions seeking them contrast substantially. However, keeping in mind the differences in each court’s appellate jurisdiction and particular sets of practice rules will greatly simplify the process of bringing such motions, thereby increasing the odds that, as the appellate process unfolds, we lawyers and the clients we represent sweat a bit less during the long, hard wait.
"A Potpourri of Power and Procedure: The Nuances of Stays Pending Appeal Before NY’s Appellate Division and Court of Appeals," by Hon. Judith J. Gische and Edward E. Smith was published in the New York Law Journal on August 18, 2025.
Reprinted with permission from the August 18, 2025, edition of the New York Law Journal © 2025 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
