F & K Supply, Inc. v. Balbec Corp.

Appellate Division of the Supreme Court of New York

F & K Supply, Inc. v. Balbec Corp.

182 A.D.2d 454

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 2, 1992

StatusPublished

This text of 182 A.D.2d 454 (F & K Supply, Inc. v. Balbec Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

F & K Supply, Inc. v. Balbec Corp., 182 A.D.2d 454 (N.Y. Ct. App. 1992).

Pincite

Opinion

Appeal from an order of the Supreme Court (Torraca, J.), entered March 1, 1991 in Ulster County, which conditionally granted defendants’ motion to set aside a default judgment entered against them.

The sole issue before us is defendants’ contention that Supreme Court abused its discretion by conditioning the opening of their default upon the posting of a bond even though their default was allegedly not willful or intentional. A court, however, is not so bound and, as we have noted, Supreme Court has "the discretion to grant the relief requested on such terms and conditions wMch it deem[s] fair under the circumstances * * * including the imposition of an undertaking” (Rubin v Payne, 103 AB2d 946, appeal dismissed 64 NY2d 754). Furthermore, insofar as defendants here do not claim that they are financially unable to post the undertaking or that it would deny them their day in court (see, supra), there are no grounds for a finding that Supreme Court abused its discretion. The parties’ arguments concerning the merit of the underlying case are irrelevant given that the propriety of vacating the default in the first place is not at issue on this appeal.

Mercure, J. P., Crew III, Mahoney, Casey and Harvey, JJ., concur. Ordered that the order is affirmed, with costs.

Free access — add to your briefcase to read the full text and ask questions with AI

Appeal from an order of the Supreme Court (Torraca, J.), entered March 1, 1991 in Ulster County, which conditionally granted defendants’ motion to set aside a default judgment entered against them.

The sole issue before us is defendants’ contention that Supreme Court abused its discretion by conditioning the opening of their default upon the posting of a bond even though their default was allegedly not willful or intentional. A court, however, is not so bound and, as we have noted, Supreme Court has "the discretion to grant the relief requested on such terms and conditions wMch it deem[s] fair under the circumstances * * * including the imposition of an undertaking” (Rubin v Payne, 103 AB2d 946, appeal dismissed 64 NY2d 754). Furthermore, insofar as defendants here do not claim that they are financially unable to post the undertaking or that it would deny them their day in court (see, supra), there are no grounds for a finding that Supreme Court abused its discretion. The parties’ arguments concerning the merit of the underlying case are irrelevant given that the propriety of vacating the default in the first place is not at issue on this appeal.

Mercure, J. P., Crew III, Mahoney, Casey and Harvey, JJ., concur. Ordered that the order is affirmed, with costs.

Cite This Page — Counsel Stack

Bluebook (online)

182 A.D.2d 454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/f-k-supply-inc-v-balbec-corp-nyappdiv-1992.