[*1]
Day v Plumber's Shop & Assoc. LLC
2025 NY Slip Op 51938(U) [87 Misc 3d 1248(A)]
Decided on September 16, 2025
Supreme Court, New York County
Lebovits, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on September 16, 2025
Supreme Court, New York County


Linda Day, Plaintiff,

against

The Plumber's Shop & Associates LLC and HENRY NOEL, Defendants.




Index No. 158691/2022



Lynn Occhipinti LLP, New York, NY (Frank S. Occhipinti of counsel), for plaintiff.

Russo & Gould LLP, New York, NY (Jeremy A. Berman of counsel), for defendant Plumber's Shop & Associates LLC.


Gerald Lebovits, J.

In this action arising from a flood within an apartment building, this court previously denied the motion of defendant Plumber's Shop & Associates LLC to dismiss the claims of plaintiff, Linda Day. (See NYSCEF No. 37 [order memorializing oral decision delivered on the record; NYSCEF No. 43 at Tr. 14-20 [decision on the record].) Defendant timely noticed an appeal from the order denying dismissal. (See NYSCEF No. 39.)

Defendant now moves by order to show cause under CPLR 2201 and CPLR 5519 (c) for a stay pending appeal; and defendant seeks an interim stay of discovery pending resolution of the motion. (See NYSCEF No. 40 [proposed OSC].) The motion (including the request for interim relief) is denied.

Defendant here is not entitled to a stay under CPLR 5519 (c). The "scope of this discretionary stay is coextensive with the automatic stay [under CPLR 5519 [a] [1]], and applies only to provide non-governmental parties with the opportunity to stay proceedings to enforce the judgment or order appealed from pending the appeal." (Tax Equity Now NY LLC v City of New York, 173 AD3d 464, 465 [1st Dept 2019].) Defendant does not contend, and has not established, [*2]that it would be entitled to an automatic stay.[FN1]

Whether to grant a motion for a CPLR 2201 stay pending is within the motion-court's discretion. (See CDR Créances S.A. v Euro-American Lodging Corp., 40 AD3d 421, 423 [1st Dept 2007] [affirming denial of stay].) In considering a party's request for a discretionary stay pending appeal, the most important factor is whether the appeal has merit. (See id.; accord 64 B Venture v American Realty Co., 179 AD2d 374, 375-376 [1st Dept 1992] [affirming denial of request for discretionary stay sought under CPLR 5519 [c]].) Here, defendant has "failed to show sufficient merit to [its] appeal" to warrant a stay. (64 B Venture, 179 AD2d at 376].)

The issue before this court on the motion to dismiss was whether a release of claims executed by plaintiff in defendant's favor encompasses the claim that plaintiff now asserts against defendant. This court held that the language of the release was ambiguous; and that, taking into account extrinsic evidence (an earlier email from defendant's insurer to plaintiff's counsel), the release does not relinquish plaintiff's current claim. (See NYSCEF No. 43 at Tr. 17-19.)

Defendant's contention that its appeal is meritorious rests on the same arguments that this court already heard and rejected in denying the motion to dismiss. (Compare NYSCEF No. 36 at 2-5, 7-8, with NYSCEF No. 46 at 2-4.) This court is not persuaded that it erred—whether in finding the release to be ambiguous, in considering extrinsic evidence bearing on the meaning of the release's ambiguous language, or in holding that the import of that evidence favors plaintiff's interpretation over defendant's for purposes of the motion to dismiss.[FN2] Absent a basis to believe that defendant's appeal has merit, this court concludes, in its discretion, that no stay pending appeal is warranted. Given the denial of the underlying stay motion, this court also denies as academic defendant's request for an interim stay pending resolution of the motion.

Accordingly, it is

ORDERED that defendant's motion for a discretionary stay pending appeal is denied.

DATE 9/16/2025

Footnotes


Footnote 1:Defendant's noticing of an appeal from the denial of its motion to dismiss "does not trigger the automatic stay with respect to litigation obligations provided for in the CPLR, such as the obligation to answer and comply with discovery requests." (Tax Equity Now, 173 AD3d at 465.)

Footnote 2:This court's decision on the record did not expressly address defendant's argument that plaintiff's use of the insurer's email in opposing the motion to dismiss is foreclosed by a "no additional representations" clause in the release. (See NYSCEF No. 36 at 2; NYSCEF No. 46 at 3-4.) This court takes this opportunity to clarify that defendant's "no additional representations" argument is without merit because it misconstrues the basis for plaintiff's use of that email. Plaintiff has not contended that the statement in the insurer's email must be given effect in light of her reliance on that statement in executing the release, as might be the case were she asserting a claim for misrepresentation or estoppel. Rather, she has introduced the email to show that it was the parties' mutual understanding that the scope of release would not encompass plaintiff's current claim—an argument sounding in contract, not in fraud or estoppel. In this regard, it is telling that the no-additional-representations decision cited by defendant (D'Artagnan, LLC v Sprinklr Inc., 192 AD3d 457 [1st Dept 2021]), and the cases on which that decision itself relies, all address fraud claims, not contract claims.