Haymarket LLC v. D.G. Jewellery of Canada Ltd.

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered March 15, 2002, entitling plaintiff to recover from nonparty appellant surety Fidelity and Deposit Company of Maryland $376,358, plus interest, and order, same court and Justice, entered March 13, 2002, which denied appellant’s motion to vacate the court’s ex parte order entered February 7, 2002 directing appellant to make payment on its bond, unanimously affirmed, without costs.

To stay enforcement of the judgment against defendant D.G. Jewellery of Canada Ltd. pending defendant’s appeal, appel*291lant surety filed with the court an undertaking in which it agreed to pay the amount of the judgment in plaintiffs favor, up to $376,358, if the judgment was affirmed, or if defendant’s appeal was dismissed. When the judgment was affirmed, plaintiff moved against the bond. Contrary to appellant’s contention, it received notice reasonably apprising it of the pendency of the action against its bond, and it was afforded several opportunities to present its objections thereto (see Mullane v Central Hanover Bank & Trust Co., 339 US 306, 314).

In addition, the judgment having been affirmed and the shares to be delivered pursuant thereto having markedly diminished in value since the date when they should have been turned over to plaintiff pursuant to the parties’ agreement, the motion court correctly ruled that it had the authority to order appellant to pay the full limit of its bond. Concur — Andrias, J.P., Ellerin, Rubin, Friedman and Gonzalez, JJ.