Opinion
2016–04247 Index No. 4693/12
01-09-2019
Abraham J. ORT, etc., Appellant, v. Amelia Manya Emily ORT, etc., Respondent.
Abraham J. Ort, Brooklyn, NY, appellant pro se. Moskowitz & Book, LLP, New York, N.Y. (Avraham C. Moskowitz and David A. Stein of counsel), for respondent.
Abraham J. Ort, Brooklyn, NY, appellant pro se.
Moskowitz & Book, LLP, New York, N.Y. (Avraham C. Moskowitz and David A. Stein of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In an action pursuant to Not–For–Profit Corporation Law article 7, the plaintiff appeals from an order of the Supreme Court, Kings County (Loren Baily–Schiffman, J.), dated February 11, 2016. The order, insofar as appealed from, upon granting the plaintiff's motion, in effect, pursuant to CPLR 5015(a)(1) to vacate his default in appearing at a compliance conference and to restore the action to the active calendar, did so on condition that the plaintiff appear for an in-person deposition in New York on or before a certain date.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In this action pursuant to Not–For–Profit Corporation Law article 7, the plaintiff moved, in effect, pursuant to CPLR 5015(a)(1) to vacate his default in appearing at a compliance conference and to restore the action to the active calendar. By order dated February 11, 2016, the Supreme Court granted the plaintiff's motion on condition that the plaintiff appear for an in-person deposition in this State on or before a certain date. The plaintiff appeals from so much of the order as conditioned the granting of his motion on him appearing for an in-person deposition in this State on or before a certain date.
CPLR 5015(a) provides, in part, "[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just." Whether to impose a condition to granting a motion to vacate a default order or judgment is a discretionary determination (see e.g. Hudson v. Gouldbourne, 83 A.D.3d 1001, 921 N.Y.S.2d 554 ; Island Seafood v. Anchor Fish Distribs., 269 A.D.2d 426, 703 N.Y.S.2d 216 ; Mairena v. Charlemagne, 102 A.D.2d 814, 476 N.Y.S.2d 384 ). Under the circumstances of this case, the Supreme Court providently exercised its discretion in conditioning the granting of the plaintiff's motion on the plaintiff appearing for an in-person deposition in this State on or before a certain date (see CPLR 5015[a] ; Hudson v. Gouldbourne, 83 A.D.3d 1001, 921 N.Y.S.2d 554 ; see generally 10 Weinstein–Korn–Miller, N.Y. Civ Prac: CPLR ¶ 5015.14).
LEVENTHAL, J.P., HINDS–RADIX, DUFFY and BRATHWAITE NELSON, JJ., concur.