Raji v. Souri

99 A.D.2d 433, 470 N.Y.S.2d 398, 1984 N.Y. App. Div. LEXIS 16587

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 1984
• Status: Published

Opinion

Appeal from the order of the Supreme Court, New York County (Richard Lee Price, J.), entered on August 9, 1983, which, inter alia, vacated the default by defendant Cyrus Hashemi only on condition that he file with the clerk of the court an undertaking in the amount of $100,000 within 20 days after service of a copy of that order, is dismissed as superseded by the order of September 16, 1983, without costs. Order of the Supreme Court, New York County (Richard Lee Price, J.), entered on September 16,1983, which granted the motion by defendant Hashemi for reargument and, upon reargument, denied his request to eliminate the bond requirement but extended the time for filing the undertaking, is modified, on the law and the facts, and in the exercise of discretion, to delete the condition of filing an undertaking and otherwise affirmed, without costs or disbursements. Although Special Term appropriately granted the motion by defendant Hashemi to vacate the default judgment against him, the court should not have imposed as a condition of the vacatur that defendant file an undertaking in the amount of $100,000. Plaintiff has failed to demonstrate, nor does the record reveal, the necessity for such a bond. Concur — Sandler, J. P., Asch, Silverman, Fein and Milonas, JJ.