ALHOMEDI v. George P. Psathas, appellant.

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

Ahmed ALHOMEDI, respondent, v. TDS LEASING, INC., et al., defendants, George P. Psathas, appellant.

Decided: June 26, 2007

REINALDO E. RIVERA, J.P., ROBERT A. SPOLZINO, STEVEN W. FISHER, ROBERT A. LIFSON, and THOMAS A. DICKERSON, JJ. Paul D. Jaffe, White Plains, N.Y., for appellant. Siegel & Siegel, P.C., New York, N.Y. (Michael D. Siegel of counsel), for respondent.

In an action, inter alia, to recover damages for breach of a commercial lease, the defendant George P. Psathas appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Partnow, J.), dated June 27, 2006, as denied those branches of his motion which were, in effect, for leave to reargue his prior motion pursuant to CPLR 5015(a) to vacate a judgment in favor of the plaintiff and against him in the sum of $105,605.22, entered upon his default in appearing at trial, which was granted in an order of the same court dated February 3, 2006, upon the condition that he post an undertaking, and to vacate his default in posting an undertaking, and granted the plaintiff's cross motion to reinstate the judgment entered against him upon his default in appearing at trial.

ORDERED that the appeal from so much of the order as denied that branch of the motion of the defendant George P. Psathas which was, in effect, for leave to reargue is dismissed, as no appeal lies from the denial of a motion for leave to reargue;  and it is further,

ORDERED that the order is affirmed insofar as reviewed;  and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

The plaintiff and the defendant George P. Psathas (hereinafter the defendant) entered into a so-ordered stipulation dated February 3, 2006, which granted the defendant's motion to vacate a judgment entered against him upon his default in appearing at trial upon the condition, inter alia, that he post an undertaking.   The so-ordered stipulation functioned as a conditional order, which caused the judgment to become absolute upon the defendant's failure to comply with the condition requiring him to post the undertaking (see Goldsmith Motors Corp. v. Chemical Bank, 300 A.D.2d 440, 440-441, 751 N.Y.S.2d 547;  Siltan v. City of New York, 300 A.D.2d 298, 750 N.Y.S.2d 323;  Tirone v. Staten Is. Univ. Hosp., 264 A.D.2d 415, 694 N.Y.S.2d 117).   To avoid the adverse impact of the conditional so-ordered stipulation, the defendant was required to demonstrate a reasonable excuse for his failure to timely comply with the requirement that he post an undertaking, along with the existence of a meritorious defense (see Koslosky v. Khorramian, 31 A.D.3d 716, 818 N.Y.S.2d 463).   The defendant failed to provide a reasonable excuse for his failure to timely post an undertaking (see Anamdi v. Anugo, 260 A.D.2d 329, 330-331, 687 N.Y.S.2d 675).   Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the defendant's motion which was to vacate his default in posting an undertaking and in granting the plaintiff's cross motion to reinstate the default judgment.

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