The petitioners Ralph T. Pescrillo, Pescrillo Niagara, LLC, Prescrillo New York, LLC (T/A Ralph T. Pescrillo Development) have moved for permission from this Court to appeal its determination of September 11, 2019 to the Appellate Division, Third Department, and for a stay of the judgment and order. The petitioners assert that permission is necessary for them to appeal as this is an Article 78 proceeding. The respondents oppose, contending that permission is not necessary, and that a stay is not warranted under the circumstances.

In this application, the petitioners reiterate the same arguments set out in their Article 78 proceeding, and attached as Exhibits all the pleadings attendant with the Article 78 proceeding. The respondents point out that the appeal from the Court's determination can be made as a matter of right in this instance.^[FN1]

A reading of CPLR 5701 ( c ) requires that "an order made in a proceeding against a body or officer pursuant to Article 78" be appealed only by permission. CPLR 5701 (a) (1) provides that any judgment is appealable. Here, the Court entered a final judgment against the petitioners, appealable as of right, and there were no interlocutory or intermediate orders left undecided —for example: the matter was not referred back to the Industrial Board for further proceedings (Micklas v Town of Halfmoon Planning Board, 170 AD3d 1483 [3d Dept 2019]).As such, the very limited provision that Article 78 "orders" are subject to permissive appeal was not triggered by the Court's determination dismissing the petitioners' petition.

Just as the Supreme Court is not the appropriate court to seek leave to appeal, it is also not the Court in which to seek a stay on a dismissal of an Article 78 petition. Here, the Court is mindful, as a general rule, that most judgments are stayed by the appeal process (CPLR 5519(a)). Nor is a stay necessary in this case. The Court's decision, from which the petitioners seek to appeal, dismissed their challenge to a determination by the Industrial Board of Appeals ("IBA") and which assessed a monetary fine. The IBA affirmed an order of the New York State Department of Labor — based on the petitioners failure to name a necessary party — which found the petitioners liable for illegal deductions from employees wages and other Labor Law violations. The amount due, however, has not been reduced to a judgment which can be enforced, and will not be until such time as all appeals, pursuant to Labor Law 102, are concluded. Judgments under Labor Law 218(3) and 219(3) may not be filed until administrative and judicial review is no longer pending and/ or the time to bring the same has expired.

The respondents further note that the petitioners have not satisfied the CPLR 5519 requirement that they post an undertaking in the amount of the judgment, nor make any mention of that requirement in their motion. CPLR 5519(a)(2) automatically stays enforcement of a money judgment during an appeal provided that an undertaking is made. CPLR 5519(c) allows a court to grant a discretionary stay, with the same condition that an undertaking be made.

Lastly, the Court turns to the petitioners' letter requesting that the Court delay its [*2]determination on their motion for permission to appeal until such time as the Appellate Division, Third Department has ruled on the appeal pending there. However viewed, there is simply no authority for this "two bites" of the apple approach, and it is declined by the Court. All said, the petitioners' only remedy is judicial review by the Appellate Division.

Accordingly, it is

This constitutes the Decision and Order of the Court. This original Decision and Order is returned to the attorneys for the respondents. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.