On motion sequence 001 in this action, this court granted plaintiff a declaratory judgment providing that plaintiff properly terminated the proprietary lease of the co-op apartment formerly occupied by defendant's late mother, and providing that plaintiff may properly sell the co-op shares appurtenant to the apartment free of all encumbrances. (See 71st St.-Lexington Corp. v Frankel, 2025 NY Slip Op 50425[U], at *6 [Sup Ct, NY County 2025].) This court also granted plaintiff judgment for the attorney fees that it had incurred through the filing of its opening papers on motion sequence 001 (as provided for under the proprietary lease); and held that plaintiff could seek a supplemental judgment for those fees incurred after the filing of its opening papers on that motion. (See id. at *6-7.)

Defendant timely noticed an appeal from this court's order on motion sequence 001. (See NYSCEF No. 88.) Defendant now moves on motion sequence 002 to set an undertaking under CPLR 5519 (a) (6), so as to invoke the appellate stay provided for by that provision. (See NYSCEF No. 89 [notice of motion]; NYSCEF No. 92 at 3 [mem. of law].) On motion sequence [*2]003, plaintiff moves for an award of attorney fees incurred after the filing of the opening papers on motion sequence 001.^[FN1] (See NYSCEF No. 99 [notice of motion].)

Defendant's motion to set an undertaking is denied as academic because defendant is not entitled to a stay under CPLR 5519 (a) (6). Plaintiff's motion for attorney fees is granted in part and denied in part.

Defendant asks this court on this motion to fix an undertaking for purposes of CPLR 5519 (a) (6).

CPLR 5519 (a) provides that service on the adverse party of a notice of appeal will "stay[] all proceedings to enforce the judgment or order appealed from pending the appeal," in several enumerated circumstances. CPLR 5519 (a) (6) provides that this automatic stay will go into effect when (i) the appellant "is in possession or control of real property which the judgment or order directs be conveyed or delivered"; and (ii) the appellant gives an undertaking, "in a sum fixed by the court of original instance," sufficient to avoid waste during the appeal and to cover accrued use and occupancy if the judgment is affirmed.

Plaintiff argues that defendant's request with respect to the undertaking should be denied because defendant would not be entitled to an automatic stay under CPLR 5519 (a) (6) even if he were to give an undertaking. This court agrees.^[FN2]

CPLR 5519 (a) (6) does not apply here. At a minimum, this court's declaratory judgment on motion sequence 001 did not direct the conveyance or delivery of real property.^[FN3] The express terms of that judgment provide only that plaintiff may—not must—sell the co-op shares appurtenant to the apartment at issue, following the termination of the proprietary lease formerly held by defendant's mother's estate. (See Frankel, 2025 NY Slip Op 50425[U], at *6 [declaring that plaintiff "is entitled to sell the shares appurtenant to the Apartment to a purchaser free and clear of all liens, restrictions, charges and encumbrances"] [emphasis added].)

Defendant does not contend that this court's declaration is properly read, notwithstanding its language, as requiring the sale of the co-op shares. At most, he argues that plaintiff "should not be permitted to avoid the application of CPLR § 5519(a)(6) by styling this action as a declaratory judgment (and a belated one at that), instead of bringing a procedurally proper action to enforce its security interest in the Shares in the first instance." (NYSCEF No. 97 at 6.) This [*3]argument—made after this court already granted the declaratory judgment to which defendant now objects—is unpersuasive.

That "[p]laintiff has stated its intent [to] . . . sell the [s]hares as soon as practicable" (id.) does not change the automatic-stay analysis. The sale of the shares, and the application of the sales proceeds to any unpaid maintenance charges, "are not commanded" by this court's order, but are instead "the sequelae of granting or denying relief." (Matter of Pokoik v Department of Health Servs. of County of Suffolk, 220 AD2d 13, 15 [2d Dept 1996].) These occurrences are therefore outside the scope of an automatic stay under CPLR 5519 (a) (6). (See id. at 15-16; accord Tax Equity Now NY LLC v City of New York, 173 AD3d 464, 465 [1st Dept 2019].)

This is not to deprecate the significance of the sale of the shares at issue here, and the possibility that it could "have the effect of changing the status quo and thereby defeating or impairing the efficacy of the order which will determine the appeal." (Matter of Pokoik, 220 AD2d at 16.) But the remedy for this problem is not a motion in this court to invoke the CPLR 5519 automatic stay. Instead, it is an application "to the appellate court to exercise either its inherent power to grant a stay of such acts in aid of its appellate jurisdiction"; its authority under CPLR 5518 and CPLR 6301 "to grant . . . a preliminary injunction or temporary restraining order" pending appeal; or its inherent power, "in extraordinary circumstances . . . to suspend the operation of the declaratory judgment itself pending the appeal." (Id.)

Because defendant would not be entitled to an automatic stay under CPLR 5519 (a) (6) regardless of any undertaking, defendant's request that this court set the amount of the undertaking to be given for (a) (6) purposes is academic. The request is denied on that basis.^[FN4]

On this motion, plaintiff moves for a supplemental attorney-fee award, as provided for by this court's order on motion sequence 001.

In opposing this motion, defendant asserts first that granting plaintiff a supplemental judgment for attorney fees is premature, because the underlying order at issue has (assertedly) been automatically stayed under CPLR 5519 (a). (See NYSCEF No. 106 at 1-2.) This court disagrees. As discussed above, CPLR 5519 (a) automatically stays the order appealed from, upon filing of a notice of appeal, only in specified circumstances—i.e., those set out in paragraphs (a) (1) through (a) (7). Defendant does not identify a paragraph of CPLR 5519 (a) that would apply [*4]to this court's order permitting plaintiff to move for a supplemental attorney-fee judgment.^[FN5]

In addition, defendant contends, in effect, that this court should deny plaintiff's supplemental-fee request because the proprietary-lease provision permitting the award of fees is (putatively) unenforceable as unconscionable. (See NYSCEF No. 106 at 4, citing Matter of Kasowitz, Benson, Torres & Friedman, LLP v JPMorgan Chase Bank, N.A., 237 AD3d 499 [1st Dept 2025].) This court disagrees. Unlike the lease language held to be unconscionable by the Appellate Division in Matter of Kasowitz, the proprietary lease here permits plaintiff-lessor to recover attorney fees only in an action arising from a lessee's default (see NYSCEF No. 21 at 17 ¶ 15)—not also in an action brought by the lessee to redress the lessor's default. (Cf. Matter of Kasowitz, 237 AD3d at 499 [discussing operative lease language in that case].) Plaintiff may properly obtain attorney fees under the proprietary lease here.^[FN6]

Defendant also argues that plaintiff has not established the reasonableness of the amounts that it claims in fees on this motion. (See NYSCEF No. 106 at 5-6.) This court agrees in part, but only in part.

Defendant does not challenge the hourly rates billed by plaintiff's attorneys; and this court concludes that those rates are reasonable.

With respect to the hours claimed, this court's prior order specified that any supplemental fee award would pertain only to hours billed after plaintiff filed its opening papers on motion sequence 001 on April 19, 2024. (See Frankel, 2025 NY Slip Op 50425[U], at *6, *7.) Some of the hours sought by plaintiff on this motion (3.3 hours of attorney time and 6 hours of paralegal time) were billed on April 19 itself, in the course of filing the opening papers. (See NYSCEF No. 101 at 2.) Those hours are not compensable. As for the remaining fees claimed, the court concludes that the amount sought exceeds, to a limited degree, what is reasonable.

Excluding noncompensable time, and hours billed that the court concludes to be unreasonable, the court awards $57,994.50 in fees, rather than the $66,330.50 claimed. (See NYSCEF No. 94 at 4 [fee affirmation].)

Accordingly, it is

ORDERED that defendant's motion to set an undertaking (mot seq 002) is denied as academic; and it is further

ORDERED that plaintiff's motion for a supplemental fee award is granted in part and denied in part, and plaintiff is awarded a supplemental judgment against defendant for $57,994.50, plus costs and disbursements as taxed by the Clerk upon the submission of an [*5]appropriate bill of costs; and it is further

ORDERED that plaintiff serve a copy of this order with notice of its entry on defendant and on the office of the County Clerk (using the NYSCEF filing event "Notice to the County Clerk - CPLR § 8019 (c)"), which shall enter judgment accordingly.