National Telecommunications Ass'n v. National Communications Ass'n

189 A.D.2d 573, 592 N.Y.S.2d 591, 1993 N.Y. App. Div. LEXIS 49

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 7, 1993
• Status: Published

Opinion

—Order, Supreme Court, New York County (Martin Stecher, J.), entered July 22, 1992, which granted petitioner’s application for a preliminary injunction in aid of arbitration pursuant to CPLR 7502 (c), unanimously modified, on the law, to the extent of remanding the matter to the IAS Court for the fixing of the undertaking to be paid by petitioner pursuant to CPLR 6312 (b), and otherwise affirmed, without costs.

In arguing that petitioner has failed to demonstrate irreparable harm and a probability of success on the merits, respondent would have this Court adopt an inappropriate standard for deciding whether relief should be granted under CPLR 7502 (c), under which the ground for entertaining an application for a provisional remedy in aid of arbitration is whether the award "may be rendered ineffectual” without it (see, Habitations Ltd. v BKL Realty Sales Corp., 160 AD2d 423, 424). We agree with the IAS Court that petitioner’s papers sufficed to make such a showing. We remand because the court did not set the amount of an undertaking pursuant to CPLR 6312 (b), a requirement that is specifically incorporated into the provisions of CPLR 7502 (c) (see, Drexel Burnham Lambert v Ruebsamen, 139 AD2d 323, 327-328, lv denied 73 NY2d 703). Concur — Murphy, P. J., Carro, Rosenberger, Ross and Asch, JJ.