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Sabre, Inc. v. Paras Exims

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 26, 2009

SABRE, INC., PLAINTIFF-APPELLANT,
v.
PARAS EXIMS, INC. DOING BUSINESS AS ARROW TRAVEL & TOURS DOING BUSINESS AS ELDER TRAVEL CLUB, DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered May 22, 2008, which conditionally granted defendant's motion to vacate a default judgment, unanimously affirmed, with costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Gonzalez, Buckley, Acosta, JJ.

600677/07

A court is expressly authorized to vacate judgment "upon such terms as may be just" (CPLR 5015[a]), possessing "an inherent power, not limited by statute, to relieve the party from a judgment or order entered on default" (Town of Greenburgh v Schroer, 55 AD2d 602 [1976]). Such terms may include conditioning that a bond be posted in the amount of all or part of the judgment (see Rawson v Austin, 49 AD2d 803 [1975]). The court did not improvidently exercise its discretion in ordering that the money in defendant's bank account, which had been levied upon and held in escrow by plaintiff's attorney, be posted as security pending trial on the merits.

Defendant demonstrated an excuse for its default and a meritorious defense (see Di Lorenzo v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]); its business manager, who had firsthand knowledge of the terms, services and costs under the contract, explained the reason for default in an affidavit of merit. Nor does the record reveal any pattern of willful neglect on defendant's part that would warrant denial of the motion.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090326

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