SABRE INC v. PARAS EXIMS INC

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Supreme Court, Appellate Division, First Department, New York.

SABRE, INC., Plaintiff-Appellant, v. PARAS EXIMS, INC. doing business as Arrow Travel & Tours doing business as Elder Travel Club, Defendant-Respondent.

Decided: March 26, 2009

ANDRIAS, J.P., GONZALEZ, BUCKLEY, ACOSTA, JJ. Salon Marrow Dyckman Newman & Broudy LLP, New York (Marc Jonas Block of counsel), for appellant. Law Offices of Victor A. Worms, New York (Victor A. Worms of counsel), for respondent.

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 the party from a judgment or order entered on default” (Town of Greenburgh v. Schroer, 55 A.D.2d 602, 389 N.Y.S.2d 384 [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 A.D.2d 803, 373 N.Y.S.2d 241 [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 plaintiff's attorney, be posted as security pending trial on the merits.

Defendant demonstrated an excuse for its default and a meritorious defense (see Di Lorenzo v. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116 [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.