Frew v. Dime Savings Bank

251 A.D.2d 622, 675 N.Y.S.2d 878, 1998 N.Y. App. Div. LEXIS 7886

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 29, 1998
• Status: Published

Opinion

—In an action, inter alia, for a permanent injunction, the plaintiff appeals from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated September 24, 1996, which denied his motion (a) to hold the defendants Dime Savings Bank of New York, FSB, and Grymes Hill Owners Corp. in contempt for the alleged violation of a temporary restraining order of the same court, dated February 1, 1995, and (b) for leave to amend his complaint.

Ordered that the appeal from so much of the order dated September 24, 1996, as denied that branch of the plaintiffs motion which was for leave to amend his complaint is dismissed as academic; arid it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that the defendant Dime Savings Bank of New York, FSB, is awarded one bill of costs.

The plaintiffs appeal from so much of the order as denied his motion for leave to amend his complaint is dismissed as academic, as the plaintiff has since been granted leave, and has, in fact, amended his complaint (see, Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714).

Furthermore, the Supreme Court properly exercised its discretion in denying that branch of the plaintiffs motion which was to hold the defendants in contempt. The record does not establish with any “reasonable certainty” that the temporary restraining order dated February 1, 1995, was disobeyed while it remained in effect (see, Matter of McCormick v Axelrod, 59 NY2d 574, 583; Educational Reading Aids Corp. v Young, 175 AD2d 152).

The plaintiffs remaining contention is without merit. Pizzuto, J. P., Santucci, Altman and Luciano, JJ., concur.