Baralan International, S.p.A. v. Avant Industries, Ltd.

255 A.D.2d 190, 679 N.Y.S.2d 811, 1998 N.Y. App. Div. LEXIS 12480

Opinion

—Order, Supreme Court, New York County (Emily Goodman, J.), entered on or about April 17, 1998, directing plaintiff to post $1,000,000 to secure its payment of defendant’s legal fees in connection with plaintiff’s violation of discovery orders pursuant to a prior order of this Court, unanimously reversed, on the law, without costs, and the order vacated.

The only issue before us is whether CPLR article 85 authorizes the court to render an order directing a plaintiff, already held liable for litigation costs and attorneys’ fees, to post security pending an ascertainment of the amount of the award, when judgment has already been entered in the underlying action dismissing the complaint with no appeal taken. We have long recognized a legislative intent that security could not be required after termination of the action (see, Schroeder v Page, 124 App Div 253 [decided under former Code of Civil Procedure § 3277]), and CPLR 8501 confers no such authority (compare, Howell v Rothberg, 197 AD2d 815 [appeal taken from dismissal of complaint, so that action was still pending]) regardless whether a final award for costs and fees is still outstanding. Concur — Sullivan, J. P., Nardelli, Rubin, Tom and Mazzarelli, JJ.