Opinion
No. CA 08-00515.
October 3, 2008.
Appeal from an order of the Supreme Court, Onondaga County (John C. Cherundolo, J.), entered August 23, 2007 in a medical malpractice action. The order denied the motion of defendants Internist Associates of Central New York, EC. Caroline Keib, M.D., and Ray T. Forbes, M.D. to require plaintiff to provide security for costs.
MARTIN, GANOTIS, BROWN, MOULD CURRIE, P.C., DE WITT (BRIAN M. GARGANO OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
POWERS SANTOLA, LLP, ALBANY (MICHAEL J. HUTTER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: Hurlbutt, J.P., Smith, Centra, Fahey and Gorski, JJ.
It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and plaintiff is required to provide security for costs by filing an undertaking in the amount of $250 and serving a copy thereof.
Memorandum: Supreme Court erred in denying the motion of defendants-appellants (defendants) seeking to require plaintiff, who does not reside in New York State, to provide security for costs pursuant to CPLR 8501 (a) ( see Garrett v Community Gen. Hosp. of Greater Syracuse, 288 AD2d 928). Defendants neither requested nor set forth justification for security in excess of the statutory amount of $250 ( see CPLR 8503). We therefore fix the amount of the undertaking at $250 ( see Harper-Malone Co. v Reynolds Co., 20 AD2d 521).