Podgurski v. Town of North Hempstead
Filing
67
MEMORANDUM OF DECISION AND ORDER - It is hereby ORDERED, that the Judgment entered against the Defendant on November 14, 2011 is stayed pending the determination of the Defendants appeal, and it is further ORDERED, that the Defendants are directed to post a supersedeas bond in the amount of $169,625.00 no later than December 14, 2011. Ordered by Senior Judge Arthur D. Spatt on 12/8/2011. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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THOMAS PODGURSKI,
Plaintiffs,
-against-
MEMORANDUM OF
DECISION AND ORDER
10-CV-2316 (ADS)
TOWN OF NORTH HEMPSTEAD and MEYRAN
MARINE SERVICES, INC.,
Defendants.
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APPEARANCES:
Bennett Guiliano McDonnell & Perrone
Attorneys for the Plaintiffs
494 Eighth Avenue, 7th Floor
New York, New York 10001
By: Nicholas P. Giuliano, Esq.
Joseph J. Perrone, Esq., Of Counsel
Tisdale Law Offices
Attorneys for the Defendants
60 East 42nd Street, Suite 1638
New York, New York 10165
By: Thomas L. Tisdale, Esq.
Timothy J. Nast, Esq., Of Counsel
SPATT, District Judge.
On November 14, 2011, the Court issued an Judgment against the Defendant
Meyran Marine Services, Inc. (“Meyran Marine”) awarding the Plaintiff Thomas
Podgurski a total of $147,500.00 for the damages he suffered as a result of a
negligently installed temporary mooring. The Court did not find the Town of North
Hempstead liable. Meyran Marine filed a Notice of Appeal with this Court on
November 22, 2011.
Presently before the Court is a motion by the Defendant Meyran Marine
Services Inc. to stay enforcement of the Judgment pending the conclusion of the
Defendant’s appeal under Federal Rule of Civil Procedure 62(d). Although the
Plaintiff does not oppose the Defendant’s motion, the Plaintiffs have requested that
the Court stay the Judgment only if the Defendant posts a supersedas bond in the
amount of 115% of the Judgment or the sum of $169,625.00.
II. DISCUSSION
A.
Rule 62(d)
Rule 62(d) provides simply that:
[i]f an appeal is taken, the appellant may obtain a stay by
supersedeas bond, except in an action described in Rule 62(a)(1) or
(2). The bond may be given upon or after filing the notice of appeal
or after obtaining the order allowing the appeal. The stay takes
effect when the court approves the bond.
Where, as here, none of the exceptions in 62(a) are applicable, a “party seeking
a stay of enforcement of a judgment pending appeal can obtain a stay as a matter of
right under Rule 62(d) by posting a bond to secure the amount of the judgment.”
Pugach v. M & T Mortg. Corp., 2008 WL 2640465, at *1 (citing De la Fuente v. PCI
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Telecomm., Inc., 269 F. Supp. 2d 237, 240 (S.D.N.Y.2003)). Here, the Defendant is
entitled to a stay as a matter of right because they intend to post a supersedeas bond
pursuant to Rule 62(d). “The supersedeas bond contemplated by Rule 62 must secure
not only the total judgment, with costs and interest, but also any damages that may
arise from the consequent delay in executing the judgment.” Kazazian v. Bartlett &
Bartlett LLP, 2008 WL 2477467, at *2 (S.D.N.Y. Jun. 19, 2008). Accordingly, the
Court finds that the Plaintiffs’ proposed bond amount of 115% of the Judgment, or the
sum of $169,625.00, is reasonable.
III. CONCLUSION
Based on the foregoing, it is hereby
ORDERED, that the Judgment entered against the Defendant on November
14, 2011 is stayed pending the determination of the Defendant’s appeal, and it is
further
ORDERED, that the Defendants are directed to post a supersedeas bond in the
amount of $169,625.00 no later than December 14, 2011.
SO ORDERED.
Dated: Central Islip, New York
December 8, 2011
/s/ Arthur D. Spatt_
ARTHUR D. SPATT
United States District Judge
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