Lamp Post Restaurant, Inc. v. Greater Island Commercial Corp.

Appellate Division of the Supreme Court of New York

Lamp Post Restaurant, Inc. v. Greater Island Commercial Corp.

38 A.D.2d 741, 329 N.Y.S.2d 342, 1972 N.Y. App. Div. LEXIS 5536

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

DecidedJanuary 24, 1972

StatusPublished

This text of 38 A.D.2d 741 (Lamp Post Restaurant, Inc. v. Greater Island Commercial Corp.) 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

Lamp Post Restaurant, Inc. v. Greater Island Commercial Corp., 38 A.D.2d 741, 329 N.Y.S.2d 342, 1972 N.Y. App. Div. LEXIS 5536 (N.Y. Ct. App. 1972).

Pincite

Opinion

In action No. 1, plaintiffs, Lamp Post Restaurant, Inc. and Peter Patras, appeal from an order of Supreme Court, Hassau County, dated September 24, 1971, which denied their renewed motion for a preliminary injunction to restrain the enforcement of certain claims held by defendants. In action Ho. 2, defendant Lamp Post Restaurant, Inc., appeals from a further order of the same court, also dated September 24, 1971, which denied its motion to stay enforcement of a cognovit judgment entered against it by plaintiff, Greater Island Commercial Corp., pending a hearing and determination as to the validity of the judgment and the amount owing thereon and pending the outcome of action No. 1. Orders reversed, with one bill of $10 costs and disbursements to appellants against respondents; motions granted; and cases remanded to the Special Term for entry of an appropriate order fixing the terms of the preliminary injunction and stay. Action No. 1 was commenced by Lamp Post Restaurant, Inc., and Peter Patras to declare void certain promissory notes and collateral executed by them in favor of defendants. Action No. 2 was commenced by Lamp Post Restaurant, Inc., though styled therein as the defendant, to test the validity of the cognovit judgment entered against it. The notes, collaterals and judgment were predicated on a loan alleged to be invalid for usury that did not appear in the terms of the transaction. The preliminary injunctions were sought to restrain foreclosure which, it was claimed, would destroy the going enterprise known as Lamp Post Restaurant. “ A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual” (CPLR 6301). Accordingly, it was an improvident exercise of discretion at the Special Term to deny the relief requested. Martuscello, Acting P. J., Latham, Christ, Brennan and Benjamin, JJ., concur.

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In action No. 1, plaintiffs, Lamp Post Restaurant, Inc. and Peter Patras, appeal from an order of Supreme Court, Hassau County, dated September 24, 1971, which denied their renewed motion for a preliminary injunction to restrain the enforcement of certain claims held by defendants. In action Ho. 2, defendant Lamp Post Restaurant, Inc., appeals from a further order of the same court, also dated September 24, 1971, which denied its motion to stay enforcement of a cognovit judgment entered against it by plaintiff, Greater Island Commercial Corp., pending a hearing and determination as to the validity of the judgment and the amount owing thereon and pending the outcome of action No. 1. Orders reversed, with one bill of $10 costs and disbursements to appellants against respondents; motions granted; and cases remanded to the Special Term for entry of an appropriate order fixing the terms of the preliminary injunction and stay. Action No. 1 was commenced by Lamp Post Restaurant, Inc., and Peter Patras to declare void certain promissory notes and collateral executed by them in favor of defendants. Action No. 2 was commenced by Lamp Post Restaurant, Inc., though styled therein as the defendant, to test the validity of the cognovit judgment entered against it. The notes, collaterals and judgment were predicated on a loan alleged to be invalid for usury that did not appear in the terms of the transaction. The preliminary injunctions were sought to restrain foreclosure which, it was claimed, would destroy the going enterprise known as Lamp Post Restaurant. “ A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual” (CPLR 6301). Accordingly, it was an improvident exercise of discretion at the Special Term to deny the relief requested. Martuscello, Acting P. J., Latham, Christ, Brennan and Benjamin, JJ., concur.

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Bluebook (online)

38 A.D.2d 741, 329 N.Y.S.2d 342, 1972 N.Y. App. Div. LEXIS 5536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lamp-post-restaurant-inc-v-greater-island-commercial-corp-nyappdiv-1972.