James v. Gottlieb

85 A.D.2d 572, 445 N.Y.S.2d 719, 1981 N.Y. App. Div. LEXIS 16367

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 1981
• Status: Published

Opinion

Order, Supreme Court, New York County (Williams, J.), entered April 7, 1981, granting plaintiff’s motion for a preliminary injunction and requiring the plaintiff to be restored to a certain apartment, is unanimously modified, on the law and the facts, and in the exercise of discretion, to the extent of reversing the grant of a preliminary injunction, and plaintiff’s motion for a preliminary injunction is denied, and the order is otherwise affirmed, without costs. The action being for money damages for wrongful eviction, a preliminary injunction may not be granted under CPLR 6301. A claim for money damages is neither an action for an injunction nor one in which there is involved a “subject of the action” as referred to in CPLR 6301. (Eastern Rock Prods. v Natanson, 239 App Div 529; 7A Weinstein-Korn-Miller, NY Civ Prac, par 6301.10, n 28.) In addition, plaintiff’s right to the apartment was not sufficiently established on this record to warrant a preliminary injunction. Defendants have not urged as error the denial of their motion to dismiss the complaint, and their appeal from this portion of the order is therefore deemed abandoned. Concur — Ross, J. P., Lupiano, Silverman, Bloom and Lynch, JJ.