Opinion
May 23, 1972
Order, Supreme Court, New York County, entered August 3, 1971, granting the motion of defendant Patricio Suarez III to reconsider the prior decision of said court, and upon such reconsideration, modifying such prior decision to the extent of opening a default judgment against said defendant on condition that he file an undertaking in the amount of $40,000, unanimously modified, on the law and in the exercise of discretion, to the extent of deleting the requirement that appellant file an undertaking, and appellant's motion is granted with the judgment and all future payments under the income garnishee, which are to be held in escrow by respondent's attorney to abide the event, to stand as security. Except as hereby modified, the order appealed from is otherwise affirmed; and respondent shall recover of appellant $30 costs and disbursements of this appeal. Appellant shall serve his answer within 10 days after service upon him by respondent of a copy of the order entered hereon with notice of entry. Under the circumstances here presented, where the record discloses that appellant's default was unintentional, it was improper to require, as a condition to opening such default, that appellant file a $40,000 undertaking. We believe it is sufficient that the default judgment and the income execution stand as security.
Concur — Kupferman, J.P., Murphy, McNally and Eager, JJ.