Seplow v. Century Operating Co.
| Decision Date | 03 February 1977 |
| Citation | 56 A.D.2d 515,391 N.Y.S.2d 124 |
| Parties | Application of Van F. SEPLOW, Plaintiff-Appellant, v. CENTURY OPERATING COMPANY, Defendant-Respondent, and Plaza Management Company, Defendant. |
| Court | New York Supreme Court — Appellate Division |
A. Morrison, New York City, for plaintiff-appellant.
D. A. Derfner, New York City, for defendant-respondent.
Before KUPFERMAN, J.P., and MURPHY, LUPIANO, BIRNS and NUNEZ, JJ.
Order and Judgment of the Supreme Court, New York County, entered October 12, 1976, which denied plaintiff's motion for an injunction and granted defendant Century Operating Corporation's cross-motion declaring certain leases terminated as of September 30, 1976 and ordering plaintiff to vacate the respective premises, unanimously modified on the law, to the extent of reversing so much thereof as granted said defendant's cross-motion, the judgment is vacated and as so modified the order is affirmed without costs and without disbursements.
Plaintiff moved by way of order to show cause for a permanent injunction 'enjoining the defendant, Century Operating Corp. from terminating the tenancy of various tenants of the plaintiff herein.' No complaint was served. CPLR 6301 provides:
'A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, Or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff.' (Emphasis supplied).
The second situation envisioned by CPLR 6301 for proper issuance of a preliminary injunction as delineated above 'is frequently referred to as an injunction based on 'the nature of the action' (and) is derived from section 877 of the Civil Practice Act without any change in substance' (7A Weinstein-Korn-Miller: New York Civil Practice 6301.12). 'Except when the basis for the preliminary injunction is the nature of the plaintiff's action, which necessitates the submission of a complaint . . ., (CPLR 6312(a)) in no way compels the plaintiff to present any proof in support for his motion other than an affidavit, although the court is free to request the...
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Taylor v. Eli Haddad Corp.
...injunction (CPLR 6301). Only in the latter situation is the plaintiff required to submit the complaint (Seplow v. Century Operating Co., 56 A.D.2d 515, 391 N.Y.S.2d 124) or at least a summons with notice stating the object of the action (Fairfield Presidential Assocs. v. Pollins, 85 A.D.2d ......
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...Realty Corp., 105 A.D.3d 683, 964 N.Y.S.2d 132 ; McHugh v. Weissman, 46 A.D.3d 369, 847 N.Y.S.2d 566 ; Matter of Seplow v. Century Operating Co., 56 A.D.2d 515, 391 N.Y.S.2d 124 ...
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Hart Island Committee v. Koch
...the underlying action, a complaint must be submitted in support of the preliminary injunction motion", and cite Seplow v. Century Operating Corp., 56 A.D.2d 515, 391 N.Y.S.2d 124 in support. The essence of the holding in that case was that where the basis for the injunction is the "nature o......
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...and otherwise made no demand for that relief, express or implied, in the third-party complaint (see e.g. Matter of Seplow v. Century Operating Co., 56 A.D.2d 515, 516, 391 N.Y.S.2d 124 ). Turning to the issue of whether MSP Realty is entitled to contractual indemnification, the lease requir......