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Summerville v. City of New York3/19/2002
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
CPLR 5519 consolidates all of the provisions of the State's civil procedure code regarding stays pending appeal. This appeal requires us to address the interplay between two subdivisions of CPLR 5519 -- CPLR 5519(a) and (e). CPLR 5519(a)(1) grants an automatic stay to the State, and its political subdivisions, their agencies and officers, pending an appeal from a judgment or order. CPLR 5519(e) provides that a (*2)stay will be continued pending resolution of a second-level appeal or until a motion for permission to take such an appeal is denied, provided the governmental appellant serves and files its notice of appeal or motion for leave to appeal with notice of entry within five days after service of an adverse order.
The dispositive question is whether a governmental appellant obtains a new automatic stay under CPLR 5519(a) when it appeals or files a motion for leave to appeal from an adverse order of an intermediate appellate court, even though it allowed its original automatic stay to lapse by failing to serve and file as required by CPLR 5519(e) to continue that stay. We answer that question in the affirmative and, therefore, hold that although the City failed to take the steps needed to continue its original automatic stay under CPLR 5519(e), it obtained a new automatic stay when it moved for leave to appeal to this Court. Plaintiff commenced this personal injury action against the City of New York, seeking damages for injuries inflicted by a police officer. Following a jury trial and reduction of the damages award by the trial court (to which plaintiff consented), a structured judgment was entered in May 1997 pursuant to CPLR Article 50-B, awarding plaintiff approximately $5 million against the City. The City appealed, automatically staying enforcement of the judgment pursuant to CPLR 5519(a)(1).
The Appellate Division modified the judgment only by deleting the provisions that awarded plaintiff $4 million for past and future pain and suffering, and granting a new trial with respect to those damages unless plaintiff stipulated to the principal sum of $2 million "and to the entry of appropriate amended judgment in his favor" (257 AD2d 566, 566-567). The order further provided that " n the event that the plaintiff so stipulates, then the judgment as so reduced and amended is affirmed, * * * and the matter is remitted to the Supreme Court * * * for entry of an appropriate amended judgment accordingly" (id. at 567).
On January 11, 1999, plaintiff personally served the City with a copy of the Appellate Division order with notice of entry. In March, plaintiff stipulated to accept the reduced damages award and, on July 6, 1999, the first amended judgment was entered and personally served on the City with notice of entry. That judgment entitled plaintiff to receive an initial lump sum payment (see CPLR 5041 ) of $598,692, and required the City to purchase an annuity contract providing for monthly (*3)payments of the appropriately adjusted amount of the remaining damages (see CPLR 5041 ). CPLR 5043 required the City to post the annuity contract as security "within thirty days after the date the judgment entered."
By letter dated July 16, 1999, plaintiff requested the City to "promptly satisfy the judgment against it, including the tender of a conforming annuity contract." The City did not respond. Rather, on August 5, 1999, the City moved at the Appellate Division for leave to appeal to this Court.
On August 16, 1999, while the City's motion for leave to appeal was still pending before the Appellate Division, plaintiff moved
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