On March 18, 2025, Justice Cohen of the New York County Commercial Division issued a decision in Tender Touch Health Care Servs. Inc. v. Tnuzeg LLC, 2025 NY Slip Op. 30886(U), holding that there is no deadline for applying for an appeal bond, explaining:
On November 4, 2024, this Court issued a judgment in the amount of $1,134,343.42 in favor of Petitioners against Respondent Vistacare. Vistacare filed a Notice of Appeal on December 3, 2024. On March 4, 2025, after substantial motion practice related to contempt and post-judgment discovery and enforcement, Petitioners moved by order to show cause for the appointment of a receiver pursuant to CPLR 5228, requesting a temporary restraining order granting the same relief. Shortly before the scheduled oral argument on the interim relief sought, Vistacare posted a bond in the amount of the judgment and asserted that the pending receivership motion was precluded by an automatic stay pending appeal pursuant to CPLR 5519(a)(2). Petitioners argued that the stay was ineffective because the posting of the bond was untimely.
Petitioners rely principally on (Tencza v Hyland 149 Misc 2d 403 [Sup Ct, Oneida County 1990]), and several cases that have cited that decision, for the proposition that an appeal bond is ineffective under CPLR 5519(a) unless it is obtained prior to or contemporaneously with the notice of appeal. Tencza involved a judgment ordering specific performance of a contract. More than a month after the judgment was entered, defendants requested the trial court to fix the sum of an undertaking under CPLR 5519(a)(6). The court held that defendants’ motion was untimely. After noting that it had found no reported case addressing the time within which the conditions in CPLR 5519(a)(2)-(6) must be met, the court concluded based on “careful review of the statutory language”—which is not further explained—that the appellant must satisfy the applicable condition prior to or contemporaneously with the service of the notice of appeal.
This Court respectfully disagrees with the Tencza court’s conclusion. Beginning with the statutory language, the introductory phrase in CPLR 5519(a) provides that service upon the adverse party of a notice of appeal stays all proceedings to enforce the judgment or order appealed from pending the appeal where any of seven separately delineated circumstances are present. One such circumstance, set forth in CPLR 5519(a)(2), is that the judgment or order directs the payment of a sum of money, and an undertaking in that sum is given.
Notably, the statute provides no timeframe for giving the undertaking described in CPLR 5519(a)(2), mandating only that it be given. The Court sees no basis for importing the opening words of the introduction to 5519(a) (“[s]ervice upon the adverse party of a notice of appeal”), which simply references the initiation of the appeal process, to impose a rigid time constraint on the potentially complex process of obtaining a bond. If the legislature intended to impose such a constraint, it easily could have done so in (a)(2) or any of the other subsections of 5519(a) which require action by the party seeking a stay. It did not. The CPLR is replete with express deadlines, and the Court declines to find an implied one here.
Nor does the Court see a policy-based reason to create a deadline out of whole cloth. The purpose of the automatic stay is to permit the appellee to maintain the status quo while ensuring collectability of the judgment should its appeal fail. The stay thereby preserves party and Court resources, while providing security to the judgment creditor. While such benefits surely are maximized when the undertaking is given as quickly as possible (and indeed here Petitioners are justified in expressing frustration at Respondent’s disappointing efforts to evade judgment prior to giving the undertaking, which this Court has punished by a contempt citation with perhaps more to come), the question presented is whether the Court should read into the statute a deadline to prevent an otherwise dilatory judgment creditor from changing course and posting an undertaking to avoid further expense and delay. Indeed, in this case such a stay is particularly efficient because the Court and parties are on the cusp of more invasive judgment enforcement mechanisms such as the receivership currently (and with reason) sought by the Petitioners. For that reason, even if the automatic stay contained in CPLR 5519(a)(2) did not apply (which it does), the Court would exercise its discretion to order a stay under CPLR 5519(c).
In sum, the Court finds that there is no basis in the language or policy of CPLR 5519 to impose a rigid deadline for posting a bond under subparagraph (a)(2) to trigger an automatic stay of judgment enforcement efforts pending appeal. That said, as the Court advised the parties during oral argument on this motion, Respondent’s midstream decision to post a bond does not stay adjudication of and, if warranted, punishment for any pre-bond violations of Court orders relating to judgment enforcement and related discovery requirements. A stay is not a pardon for past acts.
(Internal quotations and citations omitted).