Sabre, Inc. v. Paras Exims, Inc.

Appellate Division of the Supreme Court of New York

Sabre, Inc. v. Paras Exims, Inc.

60 A.D.3d 563, 876 N.Y.S.2d 29

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

DecidedMarch 26, 2009

StatusPublished

This text of 60 A.D.3d 563 (Sabre, Inc. v. Paras Exims, Inc.) 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

Sabre, Inc. v. Paras Exims, Inc., 60 A.D.3d 563, 876 N.Y.S.2d 29 (N.Y. Ct. App. 2009).

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Opinion

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered May 22, 2008, which conditionally granted defendant’s motion to vacate a default judgment, unanimously affirmed, with costs.

A court is expressly authorized to vacate judgment “upon such terms as may be just” (CPLR 5015 [a]), possessing an “inherent power, not limited by statute, to relieve a party from [564]*564a judgment or order entered on default” (Town of Greenburgh v Schroer, 55 AD2d 602 [1976]). Such terms may include conditioning that a bond be posted in the amount of all or part of the judgment (see Rawson v Austin, 49 AD2d 803 [1975]). The court did not improvidently exercise its discretion in ordering that the money in defendant’s bank account, which had been levied upon and held in escrow by plaintiffs attorney, be posted as security pending trial on the merits.

Defendant demonstrated an excuse for its default and a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]); its business manager, who had firsthand knowledge of the terms, services and costs under the contract, explained the reason for default in an affidavit of merit. Nor does the record reveal any pattern of willful neglect on defendant’s part that would warrant denial of the motion. Concur—Andrias, J.P., Gonzalez, Buckley and Acosta, JJ.

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Order, Supreme Court, New York County (Walter B. Tolub, J.), entered May 22, 2008, which conditionally granted defendant’s motion to vacate a default judgment, unanimously affirmed, with costs.

A court is expressly authorized to vacate judgment “upon such terms as may be just” (CPLR 5015 [a]), possessing an “inherent power, not limited by statute, to relieve a party from [564]*564a judgment or order entered on default” (Town of Greenburgh v Schroer, 55 AD2d 602 [1976]). Such terms may include conditioning that a bond be posted in the amount of all or part of the judgment (see Rawson v Austin, 49 AD2d 803 [1975]). The court did not improvidently exercise its discretion in ordering that the money in defendant’s bank account, which had been levied upon and held in escrow by plaintiffs attorney, be posted as security pending trial on the merits.

Defendant demonstrated an excuse for its default and a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]); its business manager, who had firsthand knowledge of the terms, services and costs under the contract, explained the reason for default in an affidavit of merit. Nor does the record reveal any pattern of willful neglect on defendant’s part that would warrant denial of the motion. Concur—Andrias, J.P., Gonzalez, Buckley and Acosta, JJ.

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Bluebook (online)

60 A.D.3d 563, 876 N.Y.S.2d 29, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sabre-inc-v-paras-exims-inc-nyappdiv-2009.

Opinion

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