Pilato v. Veretta Enterprises, Inc.
| Decision Date | 11 July 1986 |
| Citation | 122 A.D.2d 598,505 N.Y.S.2d 11 |
| Parties | Marie PILATO and Louis Pilato, d/b/a La Scarpetta, Respondents, v. VERETTA ENTERPRISES, INC., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Weinstein, Vullo & Miller by Scott Smith, Rochester, for appellant.
Louis P. Pilato by Norman Palmiere, Rochester, for respondents.
Before DILLON, P.J., and BOOMER, GREEN, PINE and LAWTON, JJ.
Defendant appeals from an order granting plaintiffs' motion for a preliminary injunction enjoining defendants from selling shoes in its store at the Village Gate Square in Rochester. At oral argument we were informed that the parties have stipulated to terminate the preliminary injunction, but to continue the $5,000 undertaking during the pendency of the action. On this appeal, defendant seeks a ruling whether the preliminary injunction was properly granted for the purpose of determining its right to proceed against the undertaking. In view of the stipulation, there is no need for this court to render an advisory opinion regarding the propriety of the preliminary injunction. Here, unlike in the case of Margolies v. Encounter, Inc., 42 N.Y.2d 475, 398 N.Y.S.2d 877, 368 N.E.2d 1243, the action has not been discontinued; hence, the right to recovery upon the undertaking can be determined after trial (see, J.A. Preston Corp. and Tumble Forms, Inc. v. Fabrication Enterprises, Inc., 117 A.D.2d 997, 499 N.Y.S.2d 542).
Appeal unanimously dismissed, without costs.
To continue reading
Request your trial
-
Straisa Realty Corp. v. Woodbury Associates
...N.Y.S.2d 220; Matter of Technicare Corp. v. New York City Health and Hosp. Corp., 131 A.D.2d 371, 516 N.Y.S.2d 937; Pilato v. Veretta Ent., 122 A.D.2d 598, 505 N.Y.S.2d 11). However, until the action is concluded on the merits, Straisa's undertaking should not be discharged and should remai......
- People v. Stith