Opinion
November 21, 1972
Burke, Curry, Hammill O'Brien for defendants.
James G. Schultz for plaintiffs.
The defendants herein move for an order requiring the plaintiffs to furnish security for costs pursuant to subdivision (a) of CPLR 8501.
Plaintiffs oppose, contending — inter alia — laches.
It is clear that, when this action was instituted, plaintiffs were residents of the State. By their own admission they became residents of South Carolina prior to August 5, 1971.
CPLR 8501 (subd. [a]) makes security for costs available as of right when none of the plaintiffs is "a resident of the state when the motion is made." (Emphasis supplied).
While the plaintiffs may not have been susceptible to the security for costs mandate when the action was started, their change of residence in the interim did deprive them of that immunity. And, rightfully so. Costs may be as uncollectible against them in their present posture as they would have been had the plaintiffs been nonresident ab initio.
Laches is no defense to the motion.
"Subd. 5 of former section 1522 which provided for a case where the plaintiff became a non-resident after commencement of the action was omitted as unnecessary. The motion must, under this subdivision, be granted if the plaintiff is in an enumerated class when it is made." (Emphasis supplied.) (McKinney's Cons. Laws of N.Y., Book 7B, CPLR 8501, Legislative Studies and Reports, p. 417.)
Therefore, the motion is granted.