Jay S. Rubin v. Everett Payne

Appeal from an order of the Supreme Court at Special Term (Williams, J.), entered November 14, 1983 in Sullivan County, which conditionally granted defendants motion to vacate a default judgment taken against him. para. In this action for damages for an alleged assault and battery, defendant was given notice of a day certain trial date of June 6, 1983 by certified letter dated May 23, 1983 from the Supreme Court clerk. Although properly addressed, the letter was returned "unclaimed". Plaintiff secured a default judgment in the sum of $7,500 plus costs. Defendant moved to vacate the default judgment, contending that he never received notice by mail or telephone to appear in court on June 6, 1983, and asserting a defense that plaintiff agreed to settle the matter. Plaintiff denied such settlement offer. Special Term vacated the default judgment on the condition that defendant post either cash or an undertaking in the amount of the judgment. Defendant has appealed so much of the order as required an undertaking and directed that the matter be placed on a non-jury calendar. A stay pending appeal was granted by this court. para. Initially, we note plaintiffs concession that, in the event defendant provides an undertaking, the matter should be restored to the Jury Trial Calendar. The sole remaining issue is whether Special Term improvidently conditioned vacatur of the default judgment upon the filing of an undertaking. Defendant essentially urges that his financial inability to obtain the bond will deprive him of his day in court (see Capellino Abattoir, Inc. v Lieberman, 59 A.D.2d 986). Plaintiffs argument that defendants motion must be denied due to the failure to establish either a viable excuse for the default or a meritorious defense must fail, since plaintiff has not appealed from the order vacating the default judgment (Mink Co. v G & T Term Packaging Co., 89 A.D.2d 821). para. Special Term had the discretion to grant the relief requested on such terms and conditions which it deemed fair under the circumstances (CPLR 5015; 5 Weinstein-Korn-Miller, NY Civ Prac, par 5015.14), including the imposition of an undertaking (Astrocom/Marlux, Inc. v Lafayette Radio Electronics Corp., 61 A.D.2d 1064, 1065; Mark IV Homes v Evans Gardens, 57 A.D.2d 701, 702). It is equally clear, however, that an undertaking requirement may be deleted where it effectively serves to deprive a defendant of his day in court (Capellino [103 A.D.2d 946 Page 947]