Arvay v. New York Telephone Co.

81 A.D.2d 600, 437 N.Y.S.2d 721, 1981 N.Y. App. Div. LEXIS 11084

Opinion

— In an action, inter alia, to compel the defendant to remove certain of its equipment from real property owned by plaintiffs, defendant appeals from so much of an order of the Supreme Court, Kings County, dated November 19, 1979, as granted its motion for a preliminary injunction on terms other than those set forth in its proposed order. On the court’s own motion, preliminary injunction dated November 19, 1979 vacated and appeal dismissed, without costs or disbursements. In the absence of the counterclaim by defendant which would provide the jurisdictional predicate for the granted relief (CPLR 6001, 6301), Special Term was without power to grant a preliminary injunction to defendant (see Pen Kem, Inc. v Goetz, 75 AD 2d 579). Lazer, J.P., Gibbons, Gulotta and Cohalan, JJ., concur.