Rourke Developers, Inc. v. Cottrell-Hajeck Inc.

Jul 12, 2001
Versions:285 A.D.2d 805
727 N.Y.S.2d 667
2001 N.Y. App. Div. LEXIS 7416
—Cardona, P. J.

Appeal from an order of the Supreme Court (Sheridan, J.), entered December 12, 2000 in Saratoga County, which, inter alia, granted plaintiffs motion for a preliminary injunction.

This is an action for a permanent injunction brought by plaintiff, a residential subdivision developer, seeking to restrain defendant, a contractor, from interfering with the closings of certain parcels by withholding partial releases from a filed confession of judgment securing defendant’s payment for infrastructure improvements. A preliminary injunction to that effect was granted by Supreme Court. Defendant argues, in this appeal, that the grant of a preliminary injunction without Supreme Court providing for an undertaking was improper and, therefore, the preliminary injunction should be vacated.

Significantly, when moving for a preliminary injunction, a plaintiff is required to post an undertaking in an amount fixed by the court (see, CPLR 6312 [b]) and this requirement may not be waived (see, Smith v Boxer, 45 AD2d 1054). Accordingly, we agree with defendant that an undertaking should have been required. However, the absence thereof only rendered the injunction voidable, not void (see, Duane Sales v Hayes, 87 AD2d 730, 731; McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C6312:2, at 363). Since Supreme Court failed to require an undertaking in the instant matter, defendant’s remedy is remittal “to Supreme Court for the purpose of fixing the amount of the [undertaking]” (Cool Insuring Agency v Rogers, 125 AD2d 758, 759, appeal dismissed 69 NY2d 1037; see, Schwartz v Gruber, 261 AD2d 526; Duane Sales v Hayes, supra, at 731; City Store Gates Mfg. Corp. v United Steel Prods., 79 AD2d 671, 67.1-672).

Mercure, Crew III, Mugglin and Rose, JJ., concur. Ordered that the order is modified, on the law, without costs, by adding thereto a provision that plaintiff shall post an undertaking as provided in CPLR 6312 (b) in an amount to be fixed by the Supreme Court following a hearing, unless the parties stipulate to an amount therefor; matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.