Quandt's Wholesale Distributors, Inc. v. Giardino

• Decision Date: 12 July 1982
• Citation: 452 N.Y.S.2d 329,89 A.D.2d 669
• Parties: QUANDT'S WHOLESALE DISTRIBUTORS, INC., Respondent, v. Joseph GIARDINO et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 329

452 N.Y.S.2d 329

89 A.D.2d 669

QUANDT'S WHOLESALE DISTRIBUTORS, INC., Respondent, v. Joseph GIARDINO et al., Appellants.

Supreme Court of New York, Appellate Division, Third Department.

July 12, 1982

Motion to modify order entered March 10, 1982. Special Term granted plaintiff's motion for a preliminary injunction and expressly dispensed with the requirement of an undertaking. By decision dated March 4, 1982, this Court reversed, and vacated the preliminary injunction. Contending that they were damaged by the preliminary injunction and that their sole relief is to proceed on an undertaking, defendants now move to modify this Court's order to direct plaintiff to post an undertaking nunc pro tunc in an amount fixed by this Court or, upon remand, by Special Term. Since the posting of an undertaking is a condition for the granting of a preliminary injunction (CPLR 6312, subd. ), it would be inconsisdent to order the posting of an undertaking subsequent to the vacatur of the injunction. Thus, while Special Term may have erred in failing to require the posting of an undertaking, since this was not remedied by a motion to amend the preliminary injunction to provide for an undertaking (see CPLR 5518), and since the preliminary injunction was vacated on appeal, any issue regarding the failure to require an undertaking is now moot as stated in the decision of this Court dated March 4, 1982. Motion denied, without costs..

MAIN, J. P., and CASEY, YESAWICH, Jr., WEISS and LEVINE, JJ., concur.