Taking Rather Than Seeking a Stay-The New Delay Tactic
Where a holdover litigant seeks a stay in supreme court, which is granted, then vacated- the next step, if any is taken, is to run as fast as you can to the appellate division. However, where that litigant's attorney knows that the appellate stay is likely to be denied, there's a new game in town; it's called granting yourself a stay! Recently, I defended against a holdover litigant's application for a preliminary injunction sought by order to show cause with a TRO staying a civil court holdover proceeding. The TRO was granted, as they usually are. Ultimately, the preliminary injunction was denied and all stays vacated. Movant took no action until, you guessed it, the day before the civil court holdover trial (which was restored to the calendar following vactur of the stays). Around noon on the day before the trial, I was noticed that an appellate application would be made the next day at 11:30. Of course the civil court trial was to commence at 9:30. Counsel did not show up in the appellate division until noon and the papers were filed around 12:30. All the while, the civil court judge had been informed that an appellate order to show cause was being filed, so the civil court case was "held". The appellate clerk conferenced the case but advised us that the sitting Judge had left for lunch and not to expect a ruling until the late afternoon. True to form, the order to show cause was signed and handed to us around 3:45. The request for a stay was stricken but that was academic. Movant had granted herself a stay since at that point in the afternoon the civil court judge said it was too late to start the holdover trial and it was adjourned for 6 weeks. Can't make this stuff up folks. . .