Barrow v. Union Free School District No. 13

72 Misc. 2d 164, 338 N.Y.S.2d 467, 1972 N.Y. Misc. LEXIS 1347

• Court: Suffolk County District Court
• Decided: November 21, 1972
• Status: Published

Opinion

Alexander W. Kramer, J.

The defendants herein move for an order requiring the plaintiffs to furnish security for costs pursuant to subdivision (a) of CPLB 8501.

Plaintiffs oppose, contending — inter alia — laches.

It is clear that, when this action was instituted, plaintiffs were residents of the State. By their own admission they became residents of South Carolina prior to August "5,1971.

CPLB 8501 (subd. [a]) makes security for costs available as of right when none of the plaintiffs is “ a resident of the state when the motion is made.” (Emphasis supplied).

While the plaintiffs may not have been susceptible to the security for costs mandate when the action was started, their change of residence in the interim did deprive them of that immunity. And, rightfully so. Costs may be as uncollectible against them in their present posture as they would have been had the plaintiffs been nonresident ah initio.

Laches is no defense to the motion.

“ Subd. 5 of former section 1522 which provided for a case where the plaintiff became a non-resident after commencement of the action was omitted as unnecessary. The motion must, under this subdivision, be granted if the plaintiff is in an enumerated class when it is made.” (Emphasis supplied.) (McKinney’s Cons. Laws of N. Y., Book 7B, CPLB 8501, Legislative Studies and Beports, p. 417.)

Therefore, the motion is granted.