Evicted Tenant May Seek Stay of Eviction Pending Appeal

Landlord sued to evict tenant for nonprimary residence. In June 2013, the court ruled for landlord and stayed execution on the eviction warrant through July 15. On July 3, tenant served and filed a notice of appeal. A marshal's eviction notice was served on July 18 and tenant was evicted on July 26. Tenant then went back to court, claiming that she didn't receive the marshal's notice. She asked the court to restore her to possession, and to bar landlord from re-renting the apartment in the meantime.

The court ruled for tenant. Tenant and landlord both focused on whether the marshal's notice had been properly delivered. But the more important question was whether tenant could obtain a stay from the court in connection with her notice of appeal. Tenant was entitled to an automatic stay from the housing court after filing her notice of appeal if she asked the court to set an undertaking. Tenant didn't want to do this. Instead, she wished to seek a discretionary stay from the appeals court, which she could also do by law. The potential harm to tenant if the apartment was re-rented pending the outcome of her appeal outweighed the harm to landlord of a delay in re-renting.

The court therefore stayed any re-renting of the apartment through Aug. 31, 2013, so that tenant could seek a stay in the court of her choosing. If the stay was granted, tenant would be restored to possession pending the outcome of her appeal. The court sought to place the parties in the position they would have been in had tenant sought a stay before execution of the eviction warrant, so tenant could pursue her right to appeal and landlord could seek any conditions on the stay that might be appropriate.

Norfolk Development LLC v. Kee: 40 Misc.3d 1223(A), 2013 NY Slip Op 51284(U) (Civ. Ct. NY; 8/6/13; Kraus, J)