Governale v. Porsche-Audi of Bay Ridge, Inc.

97 A.D.2d 457, 467 N.Y.S.2d 425, 1983 N.Y. App. Div. LEXIS 20049

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 17, 1983
• Status: Published

Opinion

In an action, inter alia, for specific performance of a contract and to recover damages for breach of contract, plaintiff appeals from an order of the Supreme Court, Richmond County (Rubin, J.), dated April 21, 1983, which denied his application for a preliminary injunction. Appeal dismissed, with costs. Special Term denied plaintiff’s application for an order preliminarily enjoining defendants from transferring, assigning, selling, or otherwise disposing of a certain Porsche model 944 automobile which had been recently delivered to them. Subsequent to the issuance of Special Term’s order, plaintiff did not obtain, from either Special Term or this court, a temporary restraining order pursuant to CPLR 5518. Plaintiff’s filing of a notice of appeal from the order did not effect such relief automatically (Dworetzky v Ball, 50 AD2d 615, mot for lv to app den 38 NY2d 708; Deacon’s Bench v Hoffman, 88 AD2d 734). Thus, as defendants were not enjoined from selling the automobile, and, in fact, did sell the automobile, the propriety of the denial of plaintiff’s application is a moot issue. As no controversy remains with respect to the order appealed from, the appeal is dismissed as moot (Nassau Trust Co. v Filderman, 52 AD2d 588; City of Binghamton v Monserrate, 71 AD2d 745, mot for lv to app den 48 NY2d 611). Were we to have decided the appeal on its merits, the order would have been affirmed. Mollen, P. J., Thompson, Rubin and Boyers, JJ., concur.