then to seek the automatic stay provided by CPLR 5519(a)(6). However, Respondent
failed to seek the discretionary stay prior to the execution of the warrant, and does not
now seek to invoke the automatic stay or ask this court to set an undertaking.
Respondent's counsel asserts Respondent always intended to move for a stay
pending appeal. Yet even on July 29, three days after execution of the warrant, neither
counsel nor Respondent were aware that an eviction had taken place, and counsel was
playing "telephone tag" with her client "... to gauge the timing for our serving a motion
for a stay pending appeal...(July 30, 2013 affirm of Zekaria)."
It is not clear why when the decision was issued on June 12, 2013,
Respondent sought no stay to prevent execution of the warrant by the end of July. The
decision provided for entry of a [*4]judgment, forthwith
issuance of the warrant and only stayed execution of the warrant through July 15, 2013.
The decision was sent by email to the attorneys, on the same date it was issued.
Respondent's counsel was ill advised to wait past the expiration of the stay on execution
of the warrant, for notification from Respondent that she received a Marshal's notice,
before moving for a stay, particularly in light of Respondent's affidavit detailing that she
was away from the Subject Premises for much of the month of July. However, the court
does not find that Respondent should lose her right to a meaningful appeal, based on the
failure to timely seek a stay.
Petitioner was aware that Respondent had filed a notice of appeal, and was
aware of Respondent's intention to move for a stay. Petitioner never the less did not
extend opposing counsel the courtesy of formal notification of its intent to execute the