CPLR R. 6312 Motion papers; undertaking; issues of fact
prior to the granting of a preliminary injunction, the plaintiff shall
give an undertaking in an amount to be fixed by the court, that the
plaintiff, if it is finally determined that he or she was not entitled
to an injunction, will pay to the defendant all damages and costs which
may be sustained by reason of the injunction…
Pamela Equities Corp. v 270 Park Ave. Café Corp., 2009 NY Slip Op 04166 (App. Div., 1st, 2009)
The court exercised its discretion in a provident manner in granting
the injunctive relief since plaintiff demonstrated a likelihood of
success on the merits, irreparable injury based on further damage to
the building if the necessary repairs are not made and that a balancing
of the equities weighs in its favor (see generally Doe v Axelrod, 73 NY2d 748, 750 [1988]; see also Huron Assoc. LLC v 210 E. 86th St. Corp., 18 AD3d 231 [2005]; 1500 Broadway Chili Co. v Zapco 1500 Inv., 259
AD2d 257 [1999]). However, because CPLR 6312(b) requires that plaintiff
post an undertaking in an amount to be fixed by the court, the matter
is remanded to the motion court to set an amount that reflects the
damages that defendant may incur (see Visual Equities v Sotheby's, Inc., 199 AD2d 59 [1993]).Although the injunctive relief was appropriately granted, "[a]
preliminary injunction is a provisional remedy. Its function is not to
determine the ultimate rights of the parties, but to maintain the
status quo until there can be a full hearing on the merits" (Residential Bd. of Mgrs. of Columbia Condominium v Alden,
178 AD2d 121, 122 [1991]). Thus, to the extent the motion court's order
indicated that it was a final disposition, it was in error.
The bold is mine.
bruteforcelawyer.com 