William Groceries & Meats Fair, Inc. v. Benderson Development Co.

Pursuant to CPLR 5204, defendant seeks an order releasing the lien of a money judgment in favor of the plaintiff and against the defendant, Benderson Development Company, Inc., as to all real and personal property of said defendant, and directing the Clerk of the County of Erie to make an appropriate entry on the docket of said judgment, upon the ground that the judgment debtor has given an undertaking upon appeal sufficient to secure the judgment creditor.

The plaintiff opposes this application upon the grounds that the wording of the undertaking is insufficient to afford to the plaintiff adequate protection.

The bond in this case recites that the surety “ does hereby * * * undertake that the Appellant will pay all costs and damages which may be awarded against the Appellant on said appeal * * * and does also undertake that if the Judgment appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the Appellant will pay the sum recovered or directed to be paid by the Judgment or the part thereof as to which it is affirmed.”

The undertaking offered by the judgment debtor complies with CPLR 5519 (subd. [a]) and article 25 in that it states that if the judgment appealed from is affirmed, or the appeal is dismissed, the debtor will pay the judgment.

It is this guarantee that justifies the release of the lien. Accordingly, motion is granted. 1