Opinion
August 7, 1978
In an action for work, labor, services and materials, defendant appeals from an order of the Supreme Court, Westchester County, dated December 20, 1977, which denied its motion to (1) vacate the default judgment entered against it and (2) permit service of a formal answer. Order reversed, without costs or disbursements, and motion granted, upon condition that defendant (as consented to by its counsel in open court) file and serve an undertaking for the full amount of the judgment, with a corporate surety, as security for any recovery which may be had by plaintiff in this action; in the event the condition is not complied with, then order affirmed, with $50 costs and disbursements. Defendant's time to serve and file the undertaking and a copy of the answer as annexed to the moving papers, is extended until 20 days after entry of the order to be made hereon. The facts herein indicate an excusable default (see Brac Constr. Corp. v DiCom Corp., 51 A.D.2d 740). The record suggests at least "an arguable defense * * * that ought to be tested on the merits" (see Becker v Belfi, 26 A.D.2d 818, 819). While a bond or undertaking is not normally required to reopen an unintentional default (Pacific Northern Fence Corp. v Allied Fabricators, 19 A.D.2d 541), the possibility of corporate dissolution here renders such condition appropriate particularly upon the consent of defense counsel. Titone, J.P., Suozzi, Shapiro and Cohalan, JJ., concur.