Opinion
May 1, 1996
Appeal from the Supreme Court, Kings County, Richard D. Huttner, J.
Michael E. Pressman, New York City (Steven H. Cohen of counsel), for appellant.
This case is governed by the holding of this Court in Shorten v City of White Plains ( 216 A.D.2d 344) in which the order appealed from merely denied a motion by the defendant City for summary judgment and did not contain a directive that the case proceed to trial. The trial in Shorten, although a natural consequence of the order denying summary judgment, was not directed by that order and thus was not automatically stayed pursuant to CPLR 5519 (a)(1) by the service of the City's notice of appeal (see also, Baker v. Board of Educ., 152 A.D.2d 1014; Walker v. Delaware Hudson R.R. Co., 120 A.D.2d 919; Young v. State of New York, 213 A.D.2d 1084).
The alternative branch of the instant motion, which seeks a stay of all proceedings in the Supreme Court pursuant to CPLR 5519 (c) and 2201, misapprehends those sections. CPLR 5519 (c) permits this Court, inter alia, to grant a discretionary stay of proceedings to enforce the order or judgment appealed from, or to vacate, limit or modify any automatic stay obtained pursuant to CPLR 5519 (a) or (b). The scope of the stay authorized by subdivision (c) is thus coextensive with the stay authorized by subdivision (a), namely, a stay of enforcement proceedings only, not a stay of acts or proceedings other than those commanded by the order or judgment appealed from (cf., Baker v. Board of Educ., 152 A.D.2d 1014, supra).
CPLR 2201 provides that "[e]xcept where otherwise prescribed by law, the court in which an action [or proceeding] is pending may grant a stay of proceedings in a proper case, upon such terms as may be just" (emphasis added). It is our view that this section authorizes only courts exercising original civil jurisdiction and not appellate jurisdiction to grant a general stay of proceedings (see, Rhodes v Mosher, 115 A.D.2d 351). There is, however, another broad source of authority for this Court, in the exercise of its appellate rather than original jurisdiction, to grant such a general stay of proceedings in an appropriate case.
We treat the alternative branch of the present motion as one addressed to this Court's inherent power to grant a stay of acts or proceedings, which, although not commanded or forbidden by the order appealed from, will disturb the status quo and tend to defeat or impair our appellate jurisdiction (see, Matter of Schneider v Aulisi, 307 N.Y. 376, 383-384; Matter of Pokoik v Department of Health Servs., 220 A.D.2d 13 [decided herewith]). Under the circumstances of this case, we decline to exercise our inherent power to grant such a stay and accordingly the motion is denied.
MANGANO, P.J., BRACKEN, ROSENBLATT, O'BRIEN and THOMPSON, JJ., concur.
Ordered that the motion is denied.