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Small v. Stern

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


September 29, 2009

SHIRLEY SMALL, ET AL., APPELLANTS,
v.
ROBERT A. STERN, ETC., ET AL., RESPONDENTS.

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Brands, J.), dated September 10, 2008, which granted the motion of the defendant Vassar Brothers Medical Center, and the separate motion of the defendants Robert A. Stern and Fishkill Obstetrics and Gynecology, P.C., pursuant to CPLR 8501, 8502, and 8503 to direct them to post security for costs in the total sum of $10,000.

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.

WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, RANDALL T. ENG and L. PRISCILLA HALL, JJ.

(Index No. 1161/08)

DECISION & ORDER

ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

Pursuant to CPLR 8501(a), out-of-state residents must furnish security for costs (see Verdino v Alexandrou, 253 AD2d 553; Gonzalez v Flushing Hosp. Med. Ctr., 245 AD2d 543; Scharaga v Schwartzberg, 149 AD2d 578). The defendants established that the plaintiffs no longer reside in New York, but are residents of Tennessee, and that an undertaking in the total sum of $10,000 was required in this complex medical malpractice action in which the defendants would incur a significant expense (see CPLR 8503). Accordingly, the plaintiffs' claim that the Supreme Court should not have directed them to post security for costs is without merit.

MASTRO, J.P., DICKERSON, ENG and HALL, JJ., concur.

20090929

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