warrant of eviction, and immediately after the expiration of the stay, directed the Marshal
to serve the notice of eviction with no notice to counsel. While no such notice is
required, it may have eliminated the present application and prevented any claim by
Respondent that she was unaware of the impending eviction.
Notwithstanding the failure of Respondent's counsel to more timely move to
seek a stay, the intent of CPLR § 5519 is clearly to afford Respondent an
opportunity to either seek a discretionary stay pending appeal, or to move this court to set
an undertaking to invoke the automatic stay. The prejudice to Respondent if she is not
afforded an opportunity to return to the status quo and seek a stay pending appeal
would be severe, and outweighs any prejudice to Petitioner by staying reletting to afford
Respondent an opportunity to move for said stay.
Therefore, reletting is stayed through August 31, 2013, to afford Respondent
an opportunity to move for a discretionary stay pending appeal, or to invoke the
automatic appeal by moving for this court to set an undertaking. Petitioner shall also be
stayed from renovating the Subject Premises during this period. If the discretionary stay
is granted, or if Respondent moves to invoke the automatic stay by asking the court to set
an undertaking which is then provided, then Respondent shall be restored to possession
forthwith pending the appeal. The warrant of eviction shall remain valid, but execution
shall be stayed pending the appeal. To the extent that Petitioner has incurred costs in the
execution of the warrant, or asserts any other prejudice, Petitioner may seek to address
these concerns in the form of any undertaking set or as a condition of any discretionary
stay granted.