Upstate Equities, Inc. v. William Bradford, Inc.

176 A.D.2d 427, 574 N.Y.S.2d 418, 1991 N.Y. App. Div. LEXIS 12417

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 26, 1991
• Status: Published

Opinion

— Appeal from that part of an order of the Supreme Court (Brown, J.), entered January 16, 1991 in Saratoga County, which conditionally granted defendant C. Bradford Irvine’s motion to vacate a default judgment entered against him.

The only issue raised on this appeal is whether Supreme Court improperly conditioned vacatur of the default judgment entered against defendant C. Bradford Irvine upon the filing of an undertaking. In rejecting Irvine’s argument that the court’s decision was in error, we note that it was within the court’s discretion to grant the vacatur motion on such terms and conditions as it deemed fair including the imposition of an undertaking (see, Rubin v Payne, 103 AD2d 946, appeal dismissed 64 NY2d 754). Although Irvine urges that he is financially unable to obtain a bond and therefore will be deprived of his day in court, the record fails to substantiate his claim of indigency. His other arguments concerning the undertaking are similarly without support in the record. Under the circumstances, we find no abuse of discretion by the court in requiring an undertaking (see, supra).

Mahoney, P. J., Casey, Mikoll, Levine and Harvey, JJ., concur. Ordered that the order is affirmed, with costs.