possession after execution of the warrant "... is entrusted to the sound discretion of the
court upon review of the particular facts and circumstances presented (Harvey 1390 LLC v Bodenheim
96 AD3d 664; see also 102-116 Eighth Ave. Assoc. 229 AD2d 296)."
Both parties assert that they are certain to prevail on appeal.
CPLR § 5519(a)(6) provides that "Service upon the adverse party of a
notice of appeal ... stays all proceedings to enforce the judgment or order appealed from
pending the appeal..." where :
the appellant or moving party is in possession or control of real property
which the judgment or order directs be conveyed or delivered, and an undertaking in a
sum fixed by the court of original instance is given that the appellant or moving party
will not commit or suffer to be committed any waste and that if the judgment or order
appealed from, or any part of it, is affirmed, or the appeal is dismissed, the appellant or
moving party shall pay the value of the use and occupancy of such property ... from the
taking of the appeal until delivery of possession of the
property;
This court has previously held that this provision is
applicable to a judgment of possession in a summary holdover proceeding [Andrada
Owners Corp. v DiGrazia 38 Misc 3d 1219(A)]. "The purpose of the stay is to
prevent the winner of a judgment from enforcing it while the loser prosecutes an appeal
(David D Siegal Practice Commentaries C5519:1)."It has generally been held that service
of the notice of appeal alone is insufficient to invoke the automatic stay, and that
additionally the court must set and the appellant must pay an undertaking.
In this case, Respondent did not move the court to set an undertaking,
because she wishes to move for a discretionary stay before the Appellate Term, rather