Applications for a Stay Seeking Emergency Relief in the Appellate Term, First Department

A client recently called me requesting information on how to stay the proceedings of a case pending the outcome of an appeal. The answer turned out to be deeper than simply serving and filing a notice of motion. I was informed he would need an answer from the Court within the next 11 days, because depositions were scheduled to begin within said time frame.

Obtaining a stay seeking emergency relief is similar to typical motion practice in the sense that you need to file a notice of motion. However, you leave the return date blank; file the motion in person, ex parte, explaining the situation/reasons for such a request to the Clerk. The motion must contain an affidavit/affirmation in support. You can also include any exhibits you find valuable, but you must attach the Notice of Appeal and the Order (with notice of entry) you are appealing.  The Notice of Appeal is essential since this will provide proof that the Appellate Term now has jurisdiction permitting the Court to rule on this motion.

The Court will make a decision without hearing oral argument and depending on the situation, without the other side filing any opposition papers. There are instances in which the Court may allow opposing counsel to file opposition papers, if time permits. In the truest form of a last minute emergency, it is best to give the Court at least 3 hours notice to rule on a stay. The timing of the Court’s decision will depend on the specific situation surrounding such a request.