52-54 East End Associates v. Herbert Weinstein Associates Inc.

Order, Supreme Court, New York County (Carol Arber, J.), entered March 19, 1990, which modified a prior order of same court entered January 22, 1990, reducing the amount of an undertaking from $500,000 to $250,000, as a condition for vacatur of default judgment, unanimously affirmed, without costs.

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to vacate the default on condition that defendants post an undertaking in the amount of $500,000, is dismissed as superceded.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.