RATNAM ASSOCIATES v. DISCOUNT KING USA INCORPORATED (2020)

ORDERED that the order is reversed, without costs, and the matter is remitted to the District Court for a new determination of tenants' motion to vacate the default final judgment.

In this commercial nonpayment proceeding, a final judgment was entered on September 21, 2017 and a warrant issued upon tenants' failure to appear or answer the petition. Tenants subsequently moved, by order to show cause, to vacate the default final judgment and warrant. The District Court, upon signing tenants' order to show cause, directed tenants to post a $45,000 undertaking before the motion's return date. Tenants failed to timely file the undertaking. At the oral argument of the motion, the District Court stated that the undertaking was required and without it, the motion would be denied. Thereafter, by order dated January 31, 2018, the District Court denied tenants' motion without elaboration.

The right to be heard on the merits of a motion to vacate a default judgment cannot be conditioned on the making of a court-ordered deposit (see Guzman v. Perez, 65 Misc 3d 151[A], 2019 NY Slip Op. 51877[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; CO-BB Devonshire Venture, LLC v. Smith, 60 Misc 3d 139[A], 2018 NY Slip Op. 51197[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; Zabolotny v. Andersen, 19 Misc 3d 128[A], 2008 NY Slip Op. 50517[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2008] ). Accordingly, the order is reversed and the matter is remitted to the District Court for a determination of the merits of tenants' motion.

ADAMS and EMERSON, JJ., concur. GARGUILO, J.P., taking no part.