Marchetti v. Kassir
| Decision Date | 25 February 2022 |
| Docket Number | INDEX 100367/2020 |
| Parties | GAYLE MARCHETTI, Plaintiff, v. RAMTIN KASSIR, Defendant. MOTION SEQ. No. 002 |
| Court | New York Supreme Court |
MOTION DATE 02/01/2022
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 002) 22, 23, 24, 25, 26, 27, 28 were read on this motion to/for SECURITY FOR COSTS/PAYMENTS .
In this action to recover damages for medical malpractice, the defendant 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 does not oppose the motion. The motion is granted to the extent that the plaintiff is directed to post security for costs in the sum of $500 on or before March 30, 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 pro se plaintiff indicated in her summons and complaint that she resides in Point Pleasant Beach, 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]).
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] []; 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 the defendant 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 upon his contention that he should be compensated for attorneys' fees that he has already incurred and is likely to incur. "Costs," as defined in CPLR article 81, however, do not include an award of attorneys' fees. Rather, were the defendant to prevail in this action after a trial, he would be entitled to costs in the sum of $300 (see CPLR 8201[3]). Giving the defendant the benefit of doubt by assuming that he might move...
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