319 Smile Corp. v Forman Fifth, LLC

319 Smile Corp. v Forman Fifth, LLC 2007 NY Slip Op 01215 [37 AD3d 245] February 13, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 11, 2007

319 Smile Corp., Appellant,
v
Forman Fifth, LLC, Respondent.

—[*1] Lee Anav Chung LLP, New York (Dean T. Cho of counsel), for appellant. Stern & Zingman LLP, New York (Mitchell S. Zingman of counsel), for respondent.

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered March 8, 2006, which, upon reargument of a prior order, denied plaintiff's motion for a stay of proceedings, a Yellowstone injunction and a temporary restraining order, and order, same court and Justice, entered August 9, 2006, which denied plaintiff's motion for reargument of the March 8 order and imposed sanctions on plaintiff's attorney, unanimously modified, on the law and the facts, to vacate the sanctions, and otherwise affirmed, without costs.

The court properly found that plaintiff did not timely seek injunctive relief, since the order to show cause that brought about a temporary restraining order and tolled the cure period pending the hearing on the Yellowstone application was not obtained until after the cure period had ended and the notice of termination served (see Weaver v Essex Owners Corp., 235 AD2d 369 [1997], lv denied 89 NY2d 1073 [1997]). Plaintiff's contention that its action was timely pursuant to CPLR 205 (a) because it related back to an earlier action that had been timely commenced and dismissed is not properly before this Court, since this point was not raised before the Supreme Court (see Deutsch v LoPresti, 272 AD2d 506, 507 [2000]).

We find an insufficient basis for an award of sanctions against plaintiff's counsel. Concur—Saxe, J.P., Friedman, Marlow, Buckley and Sweeny, JJ.