Access Medical Group, P.C. v. Straus Family Capital Group, LLC

• Decision Date: 30 October 2007
• Docket Number: 2006-06562.
• Citation: Access Medical Group, P.C. v. Straus Family Capital Group, LLC, 44 A.D.3d 975, 845 N.Y.S.2d 380, 2007 NY Slip Op 8168 (N.Y. App. Div. 2007)
• Parties: ACCESS MEDICAL GROUP, P.C., Appellant, v. STRAUS FAMILY CAPITAL GROUP, LLC, Respondent.
• Court: New York Supreme Court — Appellate Division

44 A.D.3d 975

845 N.Y.S.2d 380

2007 NY Slip Op 08168

ACCESS MEDICAL GROUP, P.C., Appellant, v. STRAUS FAMILY CAPITAL GROUP, LLC, Respondent.

2006-06562.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided October 30, 2007.

In an action, inter alia, for a judgment declaring that the plaintiff is not in breach of a commercial lease, the plaintiff appeals, as limited by its brief, so much of an order of the Supreme Court, Orange County (Lubell, J.), dated May 26, 2006, as directed it to post an undertaking pursuant to CPLR 6312 in the sum of $3,000,000.

Ordered that the order is modified, on the facts and in the exercise of discretion, by reducing the amount of the undertaking from the sum of $3,000,000 to the sum of $1,500,000; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The fixing of the amount of an undertaking is a matter within the sound discretion of the Supreme Court, and will not be disturbed absent an improvident exercise of discretion (see Lelekakis v Kamamis, 303 AD2d 380 [2003]; Blueberries Gourmet v Aris Realty Corp., 255 AD2d 348, 350 [1998]). The amount of the undertaking, however, must not be based upon speculation and must be rationally related to the damages the nonmoving party might suffer if the court later determines that the relief to which the undertaking relates should not have been granted (see Lelekakis v Kamamis, 303 AD2d at 380; 7th Sense v Liu, 220 AD2d 215, 217 [1995]). The amount of...