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Levine v. Neiva

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


January 6, 2009

PETER M. LEVINE, PLAINTIFF-APPELLANT,
v.
JUNIA HISSA NEIVA, DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered June 26, 2008, which, insofar as appealed from as limited by the brief, granted plaintiff's motion pursuant to CPLR 5225 to the extent of directing defendant to deliver certain personal property within 30 days of her return to the United States, unanimously modified, on the law, to vacate the direction to deliver the specified property within 30 days of her return to the United States and to substitute therefor the direction that defendant deliver the said property within five days after service of a copy of this order, and otherwise affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Lippman, P.J., Mazzarelli, Sweeny, DeGrasse, Freedman, JJ.

101469/06

By ordering defendant to turn over her property within 30 days of her return to the United States when the date of her return was unknown, the court effectively granted her an indefinite discretionary stay of enforcement of the judgment. Since defendant did not appeal the judgment or post a bond, there was no basis for a discretionary stay (see Tauber v Bankers Trust Co., 259 AD2d 381 [1999], lv dismissed 93 NY2d 1036 [1999]; CPLR 5519[c]).

The court properly declined to order defendant to deliver all the items of property listed by plaintiff, as it appears the items that remained on the list were "of sufficient value to satisfy the judgment" (CPLR 5225[a]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090106

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