Gibbs v. Kinsey

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

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.