Bildner v. Malkan

67 A.D.2d 841, 413 N.Y.S.2d 5, 1979 N.Y. App. Div. LEXIS 10555

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 1979
• Status: Published

Opinion

— Order, Supreme Court, New York County, entered August 7, 1978, which, inter alia, denied defendant Barbara Malkan’s motion to enjoin restraint on her property, unanimously affirmed, without costs or disbursements. Insofar as the appeal seeks review of denial of vacatur of the restraining notice, it is unanimously dismissed as moot. Carl Bildner is the judgment creditor of Willard Malkan. Barbara Malkan, the wife of Willard, is not a judgment debtor of Bildner. During the course of supplementary proceedings, Bildner issued a restraining notice upon Barbara’s counsel, a third party, in possession of property belonging to Barbara Malkan. Barbara’s motion to vacate the restraint was denied at Special Term. During the pendency of this appeal, the plaintiff’s attorney stipulated to vacate the restraining notice issued, and therefore the appeal from that portion of the order of Special Term has been rendered moot. Parenthetically, we note that had the issue not been mooted, we would have reversed that portion of the order of Special Term and vacated the restraining notice. Plaintiff had not shown that Barbara’s counsel held property in which the judgment debtor had an interest. We agree with Special Term, however, that an injunction prohibiting future restraints should not issue, since no illegal action has been taken or is threatened. Concur — Kupferman, J. P., Sandler, Lane, Markewich and Silverman, JJ.