CPLR Art 55 Volume 2 Flashcards
*****5513- Time to Take Appeal, Cross Appeal, etc.+
***An appeal as of right must be taken within __________ after service by a party upon the appellant a copy of the judgment or order appealed from and written notice of _____________
THIRTY(30)DAYS ……… its entry
*****5513- Time to Take Appeal, Cross Appeal, etc.+
If a party is served with a notice of appeal or motion for permission to appeal within the ___________ and they themselves wish to appeal, they must file such cross appeal within ____________thereafter or within the original _____________ whichever is longer
30 days ………. TEN (10) DAYS ………. 30 days
*****5513- Time to Take Appeal, Cross Appeal, etc.+
The standard of an additional _____________ for service by mail applies here as well
FIVE (5) DAYS
5514- Extension of Time to Take an Appeal or Move for Permission to Appeal
This may be granted under the following situations:
- If another available ________ for taking an appeal exists, the time limited for taking the new appeal is computed from the ___________ or ___________ of the original appeal
Method………. dismissal or denial
5514- Extension of Time to Take an Appeal or Move for Permission to Appeal
This may be granted under the following situations:
**2. Disability of an attorney – If the attorney for an aggrieved party becomes dead or is removed or suspended, or is physical or mentally incapacitated before the expiration of the time for taking an appeal, such appeal may be taken within ______________ of the date of such incapacity.
Compare this to CPLR 321 where it is only a 30 day extension
SIXTY (60) DAYS
5514- Extension of Time to Take an Appeal or Move for Permission to Appeal
This may be granted under the following situations:
- Substitution of a party- If the time for taking an appeal has not expired when there is substitution of a party, the period is extended to all parties for a period of _____________ . See CPLR 1022
FIFTEEN (15) DAYS
5514- Extension of Time to Take an Appeal or Move for Permission to Appeal
- Harmless _________ or _______ through mistake or excusable neglect can extend the time for appeal upon permission of the court. See CPLR 5520
error or omission
5515- Taking an Appeal; Notice of Appeal+
An appeal is taken by serving a notice of appeal upon an adverse party and filing it in the office where the judgment is entered
A notice shall designate:
- the __________ taking the appeal,
- the judgment or order or specific part of the judgment or order appealed from and
- the _________ to which the appeal is taken
Party ……… court
5516- Motion for Permission to Appeal
A motion for permission to appeal shall be noticed to be heard at a motion day at least ___________ and not more than _____________ after the notice of motion is served.
- Take note: this differs from the normal 8 days - 16 days
EIGHT (8) DAYS …….. FIFTEEN (15) DAYS
5517- Subsequent Orders
- An appeal is not affected by certain subsequent orders like the granting of a motion for reargument, resettlement or the denial of a motion looking for the same relief as the order appealed from was made
- A court reviewing an order may also review any the above subsequent orders made upon a motion if the subsequent order is appealable as of right.
5517- Subsequent Orders
- An appeal is not affected by certain subsequent orders like the granting of a motion for reargument, resettlement or the denial of a motion looking for the same relief as the order appealed from was made
- A court reviewing an order may also review any the above subsequent orders made upon a motion if the subsequent order is appealable as of right.
5518- Preliminary Injunction or Temporary Restraining Order by Appellate Division
The _____________ may grant, modify or limit a preliminary injunction or temporary restraining order pending an appeal
appellate division
5519- Stay of Enforcement+
Service upon the adverse party of a notice of appeal or an affidavit of intention to move for permission to appeal stays all proceedings to enforce the judgment or order appealed from pending the appeal or determination on the motion for permission to appeal where:
- the appellant or moving party is the ___________________ of the state or any officer or agency of the state or of any political subdivision of the state;
state or any political subdivision
5519- Stay of Enforcement+
Service upon the adverse party of a notice of appeal or an affidavit of intention to move for permission to appeal stays all proceedings to enforce the judgment or order appealed from pending the appeal or determination on the motion for permission to appeal where:
- If the judgment or order directs the __________ , and the appellant or moving party provides an undertaking in that amount, they agree that if the judgment or order is affirmed, or the appeal is dismissed, they will pay the amount directed to be paid by the judgment or order, or the part of it as to which the judgment or order is affirmed. or
payment of money
5519- Stay of Enforcement+
Service upon the adverse party of a notice of appeal or an affidavit of intention to move for permission to appeal stays all proceedings to enforce the judgment or order appealed from pending the appeal or determination on the motion for permission to appeal where:
- If the judgment or order directs the payment of money ___________ , the appellant or moving party provides an undertaking to pay each installment that becomes due while the appeal is pending, and any installments that are due if the judgment or order is affirmed or the appeal is dismissed. or
in installments
5519- Stay of Enforcement+
Service upon the adverse party of a notice of appeal or an affidavit of intention to move for permission to appeal stays all proceedings to enforce the judgment or order appealed from pending the appeal or determination on the motion for permission to appeal where:
- If the judgment or order directs the assignment or delivery of __________, the property is placed in the custody of an officer or the appellant provides an undertaking to obey the direction of the appellate court;or
personal property,
5519- Stay of Enforcement+
Service upon the adverse party of a notice of appeal or an affidavit of intention to move for permission to appeal stays all proceedings to enforce the judgment or order appealed from pending the appeal or determination on the motion for permission to appeal where:
- If the judgment or order directs the execution of ___________ , the instrument is executed and deposited with the court to abide the direction of the appellate court; or
an instrument
5519- Stay of Enforcement+
Service upon the adverse party of a notice of appeal or an affidavit of intention to move for permission to appeal stays all proceedings to enforce the judgment or order appealed from pending the appeal or determination on the motion for permission to appeal where:
- If the appellant or moving party is in possession of ________ that the judgment or order directs be conveyed or delivered, they must provide an undertaking to not commit waste and to pay the value of the use and occupancy of the property if the judgment or order is affirmed. If the judgment or order directs the sale of mortgaged property and the payment of any deficiency, the undertaking must also provide that the appellant or moving party will pay any such deficiency.; or
real property
5519- Stay of Enforcement+
Service upon the adverse party of a notice of appeal or an affidavit of intention to move for permission to appeal stays all proceedings to enforce the judgment or order appealed from pending the appeal or determination on the motion for permission to appeal where:
- the judgment or order directs the performance of two or more of above conditions and the appellant or moving party complies with each applicable subparagraph.
5519- Stay of Enforcement+
Service upon the adverse party of a notice of appeal or an affidavit of intention to move for permission to appeal stays all proceedings to enforce the judgment or order appealed from pending the appeal or determination on the motion for permission to appeal where:
- the judgment or order directs the performance of two or more of above conditions and the appellant or moving party complies with each applicable subparagraph.
5519- Stay of Enforcement+
- Generally, the taking of an appeal does not ___________ the enforcement of a judgment or order.
- However, there are specific exceptions that will allow for a stay.
stay
5519- Stay of Enforcement+
- If the appellant pays the amount of the judgment as an __________ pending appeal, this will put a stay on enforcement.
- If the appellant loses his appeal the funds can then be handed over to the person entitled to such as per the original decision of the court.
- If the appellant prevails then the funds are returned.
- The undertaking can also include handing over ____________
Undertaking ……… personal or real property
5519- Stay of Enforcement+
**If the appellant or moving party is the ___________ or ______________ there will be a stay pending the appeal
state or any political subdivision
5519- Stay of Enforcement+
If an appeal is taken from a judgment or order entered against an insured in an action that is defended by an insurance company, the insurance company can stay all proceedings to enforce the judgment or order where the policy covers ________ than the judgment amount
less
5519- Stay of Enforcement+
Regardless if the judgment or order appealed from is affirmed or modified the stay shall continue for __________ beyond that
FIVE(5) DAYS
5519- Stay of Enforcement+
In an action for medical,dental or podiatric malpractice in which an appeal is taken from a judgment in excess of ___________ and an undertaking for that amount is given or the amount of the defendant’s malpractice insurance policy, whichever is greater, the appellate court shall stay the enforcement proceedings as long as there is a reasonable probability that the judgment may be reversed or determined excessive
- The appellant and the insurer must also make a joint undertaking that they will not make any voidable transactions during the appeal
ONE MILLION DOLLARS
