Testwell Craig Laboratories, Inc. v. Kenneth Paul Charles Associates

264 A.D.2d 836, 695 N.Y.S.2d 407, 1999 N.Y. App. Div. LEXIS 9391

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 27, 1999
• Status: Published

Opinion

In an action to recover damages for breach of contract, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Coppola, J.), entered June 5, 1998, as conditioned the granting of their motion to vacate a judgment entered upon their default in answering the complaint on their either depositing the amount of the underlying judgment in escrow with their counsel or filing an undertaking in the amount of the judgment.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

“The court which rendered a judgment or order may relieve a party from it upon such terms as may be just” (CPLR 5015 [a]), including the imposition of an undertaking (see, Harp v Tednick Corp., 256 AD2d 904; F & K Supply v Balbec Corp., 182 AD2d 911). Conditioning the opening of a default upon the posting of security is improper, inter alia, when “it is shown that the condition will effectively serve to deprive defendant of his day in court” (Curry v Roman, 217 AD2d 314, 320; see also, Mairena v Charlemagne, 102 AD2d 814; Montgomery Coal & Oil Co. v Fuss, 35 AD2d 817). In the instant case, the defendants failed to submit any evidence of their inability to post the required undertaking (see, Curry v Roman, supra, at 320). S. Miller, J. P., Sullivan, Friedmann and Feuerstein, JJ., concur.