Mark IV Homes, Inc. v. Evans Gardens, Inc.

57 A.D.2d 701, 395 N.Y.S.2d 275, 1977 N.Y. App. Div. LEXIS 11739

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 7, 1977
• Status: Published

Opinion

Order insofar as it required defendant to post a $4,500 bond as a condition for vacating the default judgment unanimously reversed, without costs, and otherwise order affirmed. Memorandum: On January 16, 1976 plaintiff, a Delaware corporation, commenced an action against defendant, a New York corporation, in foreclosure and replevin to recover money allegedly due under a contract to purchase modular homes. Service was effected by delivering a copy of the summons with notice to the Secretary of State who sent a copy of it by registered mail to defendant who did not receive it. Thereafter, on July 28, 1976 plaintiff obtained a default judgment against defendant in the amount of $7,267.05 which defendant subsequently sought to vacate pursuant to CPLR 5015 (subd [a], par 1). Defendant now appeals from that part of an order to vacate the default which conditioned the vacatur upon defendant’s posting of a bond or cash in the amount of $4,500 and a bond in the amount of $250. The requirement of posting a bond in the sum of $250 is concededly a typographical error. The court originally imposed this requirement upon plaintiff and plaintiff has, in fact, filed the necessary undertaking. However, through apparent oversight the order finally entered required defendant to post this bond and, accordingly, the appeal is moot. It is improper to require a bond as a condition of opening a default in the absence of circumstances that would require security (Carter v Indicator Digest, 49 AD2d 519; Carlin Trading Corp. v Bennett, 24 AD2d 444). We do not find such circumstances here. (Appeal from order of Erie Supreme Court—foreclosure.) Present—Marsh, P. J., Moule, Cardamone, Goldman and Witmer, JJ.