Happy Age Shops, Inc. v. Matyas

128 A.D.2d 754, 513 N.Y.S.2d 710, 1987 N.Y. App. Div. LEXIS 44439

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 23, 1987
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Kings County (Golden, J.), dated June 24, 1986, which, inter alia, granted the plaintiff’s motion for a preliminary injunction staying the termination of the lease to the store premises located at 1819 Avenue U, Brooklyn.

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

At the time the plaintiff moved by order to show cause for a preliminary injunction, there was no action pending against the appellants. It is axiomatic that a preliminary injunction is only available in a pending action (see, CPLR 6301; Town of W. Seneca v Smith, 115 AD2d 1013). The plaintiff’s assertion of jurisdiction over these defendants, based upon service of a copy of the summons and complaint upon the law firm which represented the defendants in the underlying lease dispute, is misplaced. The provision in the order to show cause for service upon these attorneys of the order and accompanying papers, including the summons and complaint, in support of the motion for the preliminary injunction, was based upon CPLR 2103 (b), which presupposes the existence of an already pending action in which an attorney has appeared. That provision is not a vehicle for affecting service of process. Moreover, there is no basis for the plaintiff’s claim that this service provision in the order to show cause was intended by the court to authorize expedient service of the summons pursuant to CPLR 308 (5). Nothing in the papers submitted in support of the order to show cause indicated that such relief was either necessary on the ground of impracticality or that it was being requested (see, Saulo v Noumi, 119 AD2d 657). Brown, J. P., Lawrence, Eiber and Sullivan, JJ., concur.