The New York State Civil Practice Law and Rules allow for a procedure pursuant to CPLR 5518, where a party is seeking a preliminary injunction or temporary restraining order (TRO) at the Appellate Division of the Supreme Court of the State of New York. In the past, my office has written about this topic extensively. Here, I want to talk about the difference between CPLR 6301, 6312, and CPLR 5518, which is where a moving party is appealing a decision and they motion the Appellate Division for a preliminary injunction or a temporary restraining order pending their appeal.
The motion is different from a CPLR 5519, which grants an automatic stay. In 5518, you’re motioning the court to enjoin or restrain something from happening, and related to your motion, if it’s granted, the court, many times, orders a bond to be posted.
This is sometimes referred to as an Appellate Division Stay. It’s where you are appealing a lower court decision and you want the Appellate court to restrain an action from happening pending a decision from the Appellate Court. You are then required to obtain a bond.
The bond amount is going to be set by the Appellate Division. The moving party would need to create an argument for why the bond amount should either be small, medium, or large, whatever that may be. Your argument is going to influence the court in how much of a bond they should set.
We’ve previously discussed having your client pre-qualified for a bond. The reason for being pre-qualified is that you don’t want to make a motion to the Appellate court when they’re definitely going to require a bond, and your clients are unable to do so. What I would suggest is asking your client to have a financial statement prepared and submitted to my office, accompanied by an overview of the appeal and the relief you’re seeking, before you go into court. With that criteria, we would have what’s needed for the bond priced out, so you can know exactly what you would need to do to obtain a bond once the Appellate Division grants the stay.
Neil Pedersen
PEDERSEN & SONS SURETY BOND AGENCY, INC.
15 Maiden Lane Suite #800
New York, NY 10038
212-227-7277
800-720-7277
neil@courtbondnow.com
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