TESTWELL CRAIG LABORATORIES INC v. KENNETH PAUL CHARLES ASSOCIATES

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

TESTWELL CRAIG LABORATORIES, INC., respondent, v. KENNETH PAUL CHARLES ASSOCIATES, et al., appellants.

Decided: September 27, 1999

SONDRA MILLER, J.P., THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN and SANDRA J. FEUERSTEIN, JJ. John N. Romano, Yonkers, N.Y., for appellants.

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 A.D.2d 904, 681 N.Y.S.2d 849;  F & K Supply v. Balbec Corp., 182 A.D.2d 911, 581 N.Y.S.2d 495).   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 A.D.2d 314, 320, 635 N.Y.S.2d 391;  see also, Mairena v. Charlemagne, 102 A.D.2d 814, 476 N.Y.S.2d 384;  Montgomery Coal & Oil Co. v. Fuss, 35 A.D.2d 817, 317 N.Y.S.2d 218).   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, 635 N.Y.S.2d 391).

MEMORANDUM BY THE COURT.

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