Gibbs v. Kinsey

Appellate Division of the Supreme Court of New York

Gibbs v. Kinsey

120 A.D.2d 701, 502 N.Y.S.2d 503, 1986 N.Y. App. Div. LEXIS 56825

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

DecidedMay 27, 1986

StatusPublished

Cited by10 cases

This text of 120 A.D.2d 701 (Gibbs v. Kinsey) 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

Gibbs v. Kinsey, 120 A.D.2d 701, 502 N.Y.S.2d 503, 1986 N.Y. App. Div. LEXIS 56825 (N.Y. Ct. App. 1986).

Pincite

Opinion

— In an action, inter alia, to set aside a deed as fraudulent, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Aronin, J.), dated April 18, 1985, which, inter alia, denied his motion for a preliminary injunction and sua sponte dismissed the complaint.

Judgment modified, on the law, by deleting the second, third, and fifth decretal paragraphs thereof. As so modified, judgment affirmed, with costs to the plaintiff.

Special Term properly denied the plaintiff’s motion for a preliminary injunction (see, Grant Co. v Srogi, 52 NY2d 496, 517; cf. Cohen v Farber, 65 AD2d 686). However, Special Term should not have dismissed the complaint on the merits in the absence of an application for such relief or notice to the parties (see, Guggenheimer v Ginzburg, 43 NY2d 268). In addition, the complaint seeks affirmative relief not available in a pending Civil Court proceeding between the same parties (cf. Cohen v Farber, supra).

We have considered the plaintiff’s remaining contention and find it to be without merit. Rubin, J. P., Lawrence, Kunzeman and Kooper, JJ., concur.

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— In an action, inter alia, to set aside a deed as fraudulent, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Aronin, J.), dated April 18, 1985, which, inter alia, denied his motion for a preliminary injunction and sua sponte dismissed the complaint.

Judgment modified, on the law, by deleting the second, third, and fifth decretal paragraphs thereof. As so modified, judgment affirmed, with costs to the plaintiff.

Special Term properly denied the plaintiff’s motion for a preliminary injunction (see, Grant Co. v Srogi, 52 NY2d 496, 517; cf. Cohen v Farber, 65 AD2d 686). However, Special Term should not have dismissed the complaint on the merits in the absence of an application for such relief or notice to the parties (see, Guggenheimer v Ginzburg, 43 NY2d 268). In addition, the complaint seeks affirmative relief not available in a pending Civil Court proceeding between the same parties (cf. Cohen v Farber, supra).

We have considered the plaintiff’s remaining contention and find it to be without merit. Rubin, J. P., Lawrence, Kunzeman and Kooper, JJ., concur.

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Bluebook (online)

120 A.D.2d 701, 502 N.Y.S.2d 503, 1986 N.Y. App. Div. LEXIS 56825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gibbs-v-kinsey-nyappdiv-1986.

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