Tauber v. Bankers Trust Co.

| N.Y. App. Div. | Mar 23, 1999

Order, Supreme Court, New York County (Barry Cozier, J.), entered July 24, 1998, which denied plaintiff’s motion to stay enforcement of a money judgment in defendant’s favor, unanimously affirmed, with costs.

Plaintiff’s filing of a bond and a notice of intention to appeal to the Court of Appeals from a nonfinal order of this Court that did not direct the payment of a sum of money (230 AD2d 312, lv dismissed 91 NY2d 887) did not operate to effect an automatic stay pursuant to CPLR 5519 (a) (2) (see, McCain v Koch, 68 NY2d 713). Thereafter, defendant’s counterclaim for attorneys’ fees was severed, and, pursuant to this Court’s non-final order, a judgment was entered in defendant’s favor on the main breach of contract claim, which plaintiff did not appeal, although he could have appealed it directly to the Court of Appeals (CPLR 5602 [a] [1] [ii]; see, Matter of Klonowski v Department of Fire, 58 NY2d 398, 402, n 3; Michigan Natl. Bank-Oakland v American Centennial Ins. Co., 224 AD2d 319, affd 89 NY2d 94). Having failed to appeal such judgment, plaintiff is bound thereby, and there is thus no basis for granting a discretionary stay pending entry of a final judgment incorporating the attorneys’ fees, a second appeal to this Court and a second motion for leave to appeal to the Court of Appeals. Although plaintiffs appeal lacks merit, it was not frivolous to seek at least a discretionary stay of enforcement from this Court, particularly where plaintiff had posted a bond in the full amount of the judgment plus interest, and, accordingly, defendant’s request for sanctions is denied. Concur — Ellerin, P. J., Lerner, Andrias and Saxe, JJ.