Gardiner v. Suderov — 123 A.D.2d 663

Majority

p. 663

Reginald Gardiner et al., Appellants, v Phyllis P. Suderov, Respondent. Phyllis P. Suderov, Respondent, v Reginald Gardiner et al., Appellants.

(Matter No. 1.)

(Matter No. 2.)

In matters, inter alia, for a declaratory judgment,

p. 664

Reginald Gardiner and Adelaide Gardiner appeal from so much of an order of the Supreme Court, Nassau County (Di Paolo, J.), entered May 29, 1986, as conditioned the granting of their motion for consolidation of the two matters upon (1) payment into court by the Gardiners of the sum of $25,787.95; and (2) the further payment into court by the Gardiners of the sum of $2,490 on the 24th day of each month beginning June 24, 1986.

Ordered that the order is reversed insofar as appealed from, without costs or disbursements, and the matter is remitted to Supreme Court, Nassau County, for further proceedings consistent herewith.

Special Term’s granting of a motion made by the Gardiners for consolidation of two matters was conditioned upon the depositing by the Gardiners of certain moneys into court. The Gardiners, alleging that the condition is prejudicial to them, have asked this court to exercise its discretion to delete it. While we agree that the condition imposed appears to be unduly burdensome, we cannot, based on the record before us, determine what would be an appropriate condition. We therefore remit the matter to the Supreme Court, Nassau County, to give the parties an opportunity to be heard on the question of the condition to be attached to the order. Bracken, J. P., Brown, Niehoff and Eiber, JJ., concur.