Ayoub v. Kassir

• Decision Date: 20 July 2022
• Docket Number: Index No. 805237/2021,Motion Seq. No. 001
• Citation: 2022 NY Slip Op 32398 (U)
• Parties: ABBY AYOUB, Plaintiff, v. DR. RAMTIN KASSIR, M.D., F.A.C.S., and JEREMY FREDERICK, M.D., Defendants
• Court: New York Supreme Court

2022 NY Slip Op 32398(U)

ABBY AYOUB, Plaintiff, v. DR. RAMTIN KASSIR, M.D., F.A.C.S., and JEREMY FREDERICK, M.D., Defendants

Index No. 805237/2021, Motion Seq. No. 001

Supreme Court, New York County

July 20, 2022

Unpublished Opinion

MOTION DATE 05/13/2022

PRESENT: HON. JOHN J. KELLEY Justice

DECISION + ORDER ON MOTION

JOHN J. KELLEY J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 16, 17, 18, 19, 20, 26, 28, 30, 31 were read on this motion to/for SECURITY FOR COSTS

In this action to recover damages for medical malpractice, the defendant Dr. Ramtin Kassir, M.D., F.A.C.S., moves pursuant to CPLR 8501, 8502, and 8503 to compel the plaintiff to give security for costs, as of right, and thereupon to grant a stay of all proceedings until the security is posted in an amount to be determined by the court. The plaintiff opposes the motion. The motion is granted to the extent that, in connection with Kassir, the plaintiff is directed to post security for costs in the sum of $500 on or before August 22 2022, and the action is stayed until that date.

CPLR 8501(a) mandates the court, "upon motion by the defendant," to "order security for costs to be given by the plaintiffs where none of them is a domestic corporation, a foreign corporation licensed to do business in the state or a resident of the state when the motion is made" (emphasis added) (see Clement v Durban, 32 N.Y.3d 337, 344-345 [2018]). The rule provides an exception where the plaintiff has been allowed to proceed as a poor person or is the petitioner in a habeas corpus proceeding (see id. at 344).

In the instant case, the plaintiff indicated in her complaint that she resides in New Jersey, and thus is not a resident of the State of New York. Additionally, the plaintiff does not fall within any of the exceptions to CPLR 8501, as she has not been granted permission to proceed as a poor person and this is not a habeas corpus proceeding in which she is a petitioner. Hence, it is appropriate for this court to order the plaintiff to give security for costs as of right (see Garrett v Community Gen. Hosp., 288 A.D.2d 928, 929 [4th Dept 2001]).

CPLR 8503 provides that

"Security for costs shall be given by an undertaking in an amount of five hundred dollars in counties within the city of New York, and two hundred fifty dollars in all other counties, or such greater amount as shall be fixed by the court that the plaintiff shall pay all legal costs awarded to the defendant."

The court, in its discretion, thus may determine that an amount greater than $500 should be paid into the court by an out-of-state plaintiff, based on the facts and circumstances of the particular action (see Beatty v Williams, 227 A.D.2d 912, 912 [4th Dept 1996]; Howell v Rothberg, 197 A.D.2d 815 [3d Dept 1993]). Consequently, while the minimum security required is $500 with respect to an action in which the venue is placed in a county within the City of New York, the court, in fixing the amount of the undertaking, may fix an increased amount in consideration of the amount of costs likely to be expended (see Manente v Sorecon Corp., 22 A.D.2d 954 [2d Dept 1964] [security for costs was appropriately fixed at $4,500 where disbursements were likely to reach that amount in light of appellate printing costs and other disbursements likely to be incurred in the case]; see also Beatty v Williams, 227 A.D.2d at 912 [requiring non-resident to post security for costs in the amount of $5,000]; Howell v Rothberg, 197 A.D.2d 815 [3d Dept 1993][security for costs in the amount of $2,000 was reasonable]).

Here Kassir argues that the plaintiff should be compelled to post an undertaking in the sum of $10,000.00, based both on his contention that he will be entitled to an award of costs pursuant to CPLR 8303-a(a) for defending a frivolous personal injury action, and his contention that he is likely to incur significant expenses in obtaining the plaintiffs medical records. "Costs," as defined in CPLR article 81, do not include an award of attorneys'...