THI of Ill. at Brentwood, LLC v CAM-Brentwood, LLC

THI of Ill. at Brentwood, LLC v CAM-Brentwood, LLC 2012 NY Slip Op 06049 Decided on August 28, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 28, 2012
Saxe, J.P., Catterson, Acosta, DeGrasse, Richter, JJ.
7894 651735/11

[*1]THI of Illinois at Brentwood, LLC, et al., Plaintiffs-Appellants,

v

CAM-Brentwood, LLC, et al., Defendants-Respondents.




Arent Fox LLP, New York (Allen G. Reiter of counsel), for
appellants.
Dechert LLP, New York (Nicolle L. Jacoby of counsel), for
respondents.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered December 2, 2011, which adopted the report and recommendation of the special master and directed plaintiffs to provide certain information and materials and submit to an audit, unanimously affirmed, without costs.

Plaintiffs failed to preserve their current appellate claim that the court should have issued a Yellowstone injunction instead of adopting the special master's report, and we decline to review it in the interest of justice. The record shows that plaintiffs consented to the procedure employed by the court, fully participated in the proceedings before the special master, and did not raise their current objection until after the court's October 26, 2011 oral ruling adopting the special master's report (see e.g. 1199 Hous. Corp. v Jimco Restoration Corp., 77 AD3d 502, 502 [2010]; Matter of Union Indem. Ins. Co. of N.Y., 67 AD3d 469, 471 [2009], lv dismissed 14 NY3d 859 [2010]). Furthermore, by staying the cure period for ten days following adoption of the special master's report, the court essentially provided the relief plaintiffs requested.

We have considered plaintiffs' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: AUGUST 28, 2012

CLERK