Currier v. First Transcapital Corp.

Appellate Division of the Supreme Court of New York

Currier v. First Transcapital Corp.

190 A.D.2d 507, 593 N.Y.S.2d 16, 1993 N.Y. App. Div. LEXIS 896

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 2, 1993

StatusPublished

Cited by8 cases

This text of 190 A.D.2d 507 (Currier v. First Transcapital Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Currier v. First Transcapital Corp., 190 A.D.2d 507, 593 N.Y.S.2d 16, 1993 N.Y. App. Div. LEXIS 896 (N.Y. Ct. App. 1993).

Pincite

Opinion

— Order, Supreme Court, New York County (Shirley Fingerhood, J.), entered on or about September 25, 1992, which denied plaintiff’s motion for a preliminary injunction as moot and which granted defendants’ cross-motion to dismiss the complaint, unanimously affirmed, with costs.

The IAS Court properly denied, as moot, plaintiff’s motion for a preliminary injunction seeking to enjoin the private sale of both the subject units of the cooperative building which had been scheduled for August 21, 1992. The temporary restraining order was specifically conditioned upon the filing of a [508]*508$5,000 surety bond prior to the auction. Plaintiff concededly failed to fulfill an express condition precedent required for the temporary restraining order to be effective. As a consequence of the failure to post a bond, the units were lawfully sold and an injunction may not issue to prohibit a fait accompli (Town of Oyster Bay v New York Tel. Co., 75 AD2d 598).

The typographical error in the Notice of Sale as to the number of shares being sold was de minimis and did not affect the validity of the sale nor prejudice the plaintiff. Further, plaintiff admittedly knew of the typographical error prior to the auction sale, but nevertheless bid on the ground floor unit (see, Hanover Funding Co. v Keri Assocs., 180 AD2d 945). Thus, the IAS Court properly dismissed the complaint since the plaintiff, in attempting to utilize a minor typographical error to obtain more than he bargained for, namely, the ground floor as well as the fourth floor unit of the building, and by therefore coming into court with unclean hands, failed to establish that he was entitled to equitable relief in the nature of specific performance or a declaratory judgment (Pecorella v Greater Buffalo Press, 107 AD2d 1064), or that there was any cause of action upon which the relief sought could be granted. (Chan Ming v Chui Pak Hoi, 163 AD2d 268.) Concur — Murphy, P. J., Wallach, Ross and Asch, JJ.

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— Order, Supreme Court, New York County (Shirley Fingerhood, J.), entered on or about September 25, 1992, which denied plaintiff’s motion for a preliminary injunction as moot and which granted defendants’ cross-motion to dismiss the complaint, unanimously affirmed, with costs.

The IAS Court properly denied, as moot, plaintiff’s motion for a preliminary injunction seeking to enjoin the private sale of both the subject units of the cooperative building which had been scheduled for August 21, 1992. The temporary restraining order was specifically conditioned upon the filing of a [508]*508$5,000 surety bond prior to the auction. Plaintiff concededly failed to fulfill an express condition precedent required for the temporary restraining order to be effective. As a consequence of the failure to post a bond, the units were lawfully sold and an injunction may not issue to prohibit a fait accompli (Town of Oyster Bay v New York Tel. Co., 75 AD2d 598).

The typographical error in the Notice of Sale as to the number of shares being sold was de minimis and did not affect the validity of the sale nor prejudice the plaintiff. Further, plaintiff admittedly knew of the typographical error prior to the auction sale, but nevertheless bid on the ground floor unit (see, Hanover Funding Co. v Keri Assocs., 180 AD2d 945). Thus, the IAS Court properly dismissed the complaint since the plaintiff, in attempting to utilize a minor typographical error to obtain more than he bargained for, namely, the ground floor as well as the fourth floor unit of the building, and by therefore coming into court with unclean hands, failed to establish that he was entitled to equitable relief in the nature of specific performance or a declaratory judgment (Pecorella v Greater Buffalo Press, 107 AD2d 1064), or that there was any cause of action upon which the relief sought could be granted. (Chan Ming v Chui Pak Hoi, 163 AD2d 268.) Concur — Murphy, P. J., Wallach, Ross and Asch, JJ.

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Bluebook (online)

190 A.D.2d 507, 593 N.Y.S.2d 16, 1993 N.Y. App. Div. LEXIS 896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/currier-v-first-transcapital-corp-nyappdiv-1993.

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