319 Smile Corp. v. Forman Fifth, LLC

37 A.D.3d 245, 831 N.Y.S.2d 118

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 13, 2007
• Status: Published

Opinion

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered March 8, 2006, which, upon reargument of a prior order, denied plaintiff’s motion for a stay of proceedings, a Yellowstone injunction and a temporary restraining order, and order, same court and Justice, entered August 9, 2006, which denied plaintiffs motion for reargument of the March 8 order and imposed sanctions on plaintiffs attorney, unanimously modified, on the law and the facts, to vacate the sanctions, and otherwise affirmed, without costs.

The court properly found that plaintiff did not timely seek injunctive relief, since the order to show cause that brought about a temporary restraining order and tolled the cure period pending the hearing on the Yellowstone application was not obtained until after the cure period had ended and the notice of termination served (see Weaver v Essex Owners Corp., 235 AD2d 369 [1997], lv denied 89 NY2d 1073 [1997]). Plaintiffs contention that its action was timely pursuant to CPLR 205 (a) because it related back to an earlier action that had been timely commenced and dismissed is not properly before this Court, since this point was not raised before the Supreme Court (see Deutsch v LoPresti, 272 AD2d 506, 507 [2000]).

We find an insufficient basis for an award of sanctions against plaintiff’s counsel. Concur—Saxe, J.P., Friedman, Marlow, Buckley and Sweeny, JJ.