52-54 E. End Associatesv.Herbert Weinstein

Appellate Division of the Supreme Court of New York, First DepartmentNov 15, 1990
167 A.D.2d 234 (N.Y. App. Div. 1990)

November 15, 1990

Appeal from the Supreme Court, New York County (Carol Arber, J.).

The appeal from an order of the same court entered January 22, 1990, which, inter alia, granted defendants' motion to vacate the default on condition that defendants post an undertaking in the amount of $500,000, is dismissed as superceded.

Plaintiff retained defendants to act as the construction manager on a 40-story residential building. After several delays and cost overruns, plaintiff terminated defendants' services and commenced an action seeking recovery of $396,470 arising out of defendants' alleged conversion and misappropriation of construction funds. After defendants' default, and plaintiff's application for entry of a default judgment in the sum of $459,579, for which an inquest was scheduled, defendants moved to vacate the default. The motion was granted on condition that defendants post an undertaking in the sum of $500,000, which the court reduced, on a subsequent motion, to $250,000. Under the facts presented, the imposition of a bond did not constitute an abuse of discretion. Although defendants argue that that modified undertaking serves to deprive them of their day in court because their financial status prevents them from obtaining the bond, no documentary proof was submitted in support of this claim.

Concur — Kupferman, J.P., Carro, Rosenberger, Ellerin and Wallach, JJ.