Johnnies Pelham Rd. Serv., Inc. v Thomas

[*1] Johnnies Pelham Rd. Serv., Inc. v Thomas 2006 NY Slip Op 50652(U) [11 Misc 3d 1082(A)] Decided on April 17, 2006 Supreme Court, Westchester County Smith, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 17, 2006
Supreme Court, Westchester County

Johnnies Pelham Road Service, Inc., Plaintiff,

against

Richard S. Thomas, Defendant.



2850/05



Howard L. Sherman, Esq.

Attys. For Pltf.

15 Croton Avenue

Ossining, New York 10562

McGovern, Connelly & Davidson

Attys. For Deft.

145 Huguenot Street

New Rochelle, New York 10801

Mary H. Smith, J.

Upon the foregoing papers, it is Ordered that this motion by plaintiff for an Order directing the Clerk to release to it the bond that it had posted pursuant to CPLR 6312, subdivision (b), upon the granting of a preliminary injunction is granted. Upon service of this Order with Notice of Entry, the Clerk of Westchester County shall immediately release to plaintiff the bond in the sum of $125,000.

Notwithstanding defendant's vehement objection to the requested relief, defendant claiming that he has incurred substantial damages as a result of the imposed preliminary injunction, far in excess of the $125,000 bond sum and to which he claims he now is entitled, CPLR 6312, subdivision (b) provides in pertinent part that "if it is finally determined that [the plaintiff] was not entitled to an injunction, [plaintiff] will pay to the defendant all damages and [*2]costs which may be sustained by reason of the injunction ... (emphasis added)." In this regard, it is notable that the Appellate Division, upon defendant's appeal of this Court's (Barone, J.) Order granting plaintiff summary judgment, had stated that:

As to the plaintiff's right to enjoin the proposed

sale to the third-party, the defendant could not

defeat the plaintiff's right of first refusal by

selling both the leased premises and the enjoining

parcel to a third party. Citations omitted. Thus,

so long as the right of first refusal was in effect,

the plaintiff could enjoin the proposed sale.

Citation omitted. Since the entry of the order

appealed from, however, the lease has expired, and with it the plaintiff's right of first

refusal. Accordingly, the injunctive relief

sought, although correctly granted by the Supreme

Court at the time of the order appealed from, has

been rendered academic by the expiration of the

lease ... (Emphasis supplied).

Plainly, there has been no final determination in this matter that plaintiff was not entitled to the granted preliminary injunction; rather, to the extent that the appellate dismissal of this action as moot precludes any further review of the matter, it would appear that there has been a final adjudication that the preliminary injunction was properly granted. Cf. J.A. Preston Corporation v. Fabrication Enterprises, Inc., 68 NY2d 397 (1986).

While the circumstances presenting appear to be novel, this Court is persuaded that, notwithstanding that plaintiff ultimately did not prevail in its action, same was solely due to the fortuitous expiration of the subject lease, which necessarily rendered this specific performance action moot; had the lease not expired, it is manifestly clear that plaintiff would have prevailed on the merits of its claim. Plaintiff thus is entitled to the return of its posted bond. The attempt by defendant to again raise a jurisdictional issue which implicitly was rejected by Justice Barone is unavailing.

Dated: April 17, 2006

White Plains, New York_________________________________

MARY H. SMITH

J.S.C. [*3]

APPEARANCES OF COUNSEL