The opinion of the court was delivered by: MIRIAM CEDARBAUM, Senior District Judge
Martin M. Coyne moves pursuant to Fed.R.Civ.P. 62(c) to stay
the part of my May 6, 2005 order of dismissal which instructs the
defendants to accept plaintiff's complaint in this action "as a
formal claim for benefits that triggers the schedule for
administrative determination set forth in the amended plan." For
the reasons that follow, the motion is denied.
Martin M. Coyne began working for defendant Sterling Drug Inc.
in 1981. Shortly thereafter, Coyne subscribed to Sterling's
supplemental retirement benefits plan. In 1989, Eastman Kodak
acquired Sterling, although Sterling was subsequently resold. In 1994, Coyne left his job at Sterling to
join Kodak, where he worked until his retirement on July 1, 2003.
Following Coyne's retirement from Eastman Kodak, defendants did
not pay Coyne the retirement benefits that he alleges they owe
him. However, pursuant to an agreement with Coyne, Kodak paid
Coyne the supplemental benefits allegedly owed to him by
Kodak and Coyne commenced this action on June 28, 2004. Coyne
sued defendants for benefits under the supplemental retirement
plan, and Kodak sued for indemnification of its payments to
Coyne. Plaintiffs' motion for summary judgment on the ground that
Coyne had not failed to exhaust administrative remedies prior to
filing suit was denied, and the action was dismissed without
prejudice to its refiling after Coyne had exhausted his
administrative remedies. Coyne has filed a notice of appeal from
this interlocutory order. Plaintiff Eastman Kodak has not
As a threshold matter, plaintiff does not explain how
Fed.R.Civ.P. 62(c) applies in this case. That Rule provides, in
relevant part: "When an appeal is taken from an interlocutory or
final judgment granting, dissolving, or denying an injunction,
the court in its discretion may suspend, modify, restore, or grant an injunction during the
pendency of the appeal upon such terms as to bond or otherwise as
it considers proper for the security of the rights of the adverse
party." Fed.R.Civ.P. 62(c). Since plaintiff does not appeal
from an order granting, dissolving, or denying an injunction,
Fed.R.Civ.P. 62(c) is inapplicable.
However, even if Rule 62(c) were applicable in this case,
plaintiff has made no showing of irreparable harm without a stay.
Granting a stay pending appeal pursuant to Fed.R.Civ.P. 62(c)
is "discretionary and equitable" and the movant bears the burden
of proof in the determination. Hayes v. City Univ. of N.Y.,
503 F. Supp. 946, 962 (S.D.N.Y. 1980). The four considerations
guiding the court's exercise of discretion are "(1) whether the
movant will suffer irreparable injury absent a stay, (2) whether
a party will suffer substantial injury if a stay is issued, (3)
whether the movant has demonstrated `a substantial possibility,
although less than a likelihood, of success' on appeal, and (4)
the public interests that may be affected." Hirschfeld v. Bd. of
Elections, 984 F.2d 35, 39 (2d Cir. 1993).
The only irreparable injury that plaintiff contends he may
suffer in the absence of a stay is the mooting of his appeal by the issuance of a favorable benefit determination
during the pendency of the appeal.*fn1 However, plaintiff's
success in receiving the benefit he seeks is not an injury.
Plaintiff does not cite any case in which a stay pending appeal
was issued to prevent the movant from receiving the remedy for
which he sued. Plaintiff cites several cases in which a stay was
granted, thereby preventing the mooting of the movant's appeal.
However, in each of these cases, the mooting of the appeal was
not itself the irreparable harm that the movant might have
suffered in the absence of a stay. See, e.g., Becker v. United
States, 451 U.S. 1306, 1311 (1981) (loss of use of movants'
assets during pendency of appeal); In re Country Squire Assocs.,
L.P., 203 B.R. 182, 183 (2d Cir. 1996) (sale of movant's real
property during pendency of appeal); In re Advanced Mining
Systems, Inc., 173 B.R. 467, 469 (S.D.N.Y. 1994) (distribution
to others of assets against which movant asserted a claim);
Crayton v. Reetz, No. 89 Civ. 1617 (CSH), 1990 WL 20166, at *1
(S.D.N.Y. Feb. 27, 1990) (eviction of movant). In every case
cited by the plaintiff, the movant was in danger of being
permanently injured during the pendency of the appeal by some irreparable harm. In contrast, plaintiff is in no danger
of harm without a stay, much less in danger of irreparable harm.
Therefore, even if Fed.R.Civ.P. 62(c) were applicable to this
case, plaintiff has failed to show that there is any danger that
he will suffer irreparable harm without a stay.
For the foregoing reasons, plaintiff's motion for a stay
pending appeal is denied.
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