Pen Kem, Inc. v. Goetz

75 A.D.2d 579, 426 N.Y.S.2d 578, 1980 N.Y. App. Div. LEXIS 11001

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 7, 1980
• Status: Published

Opinion

two consolidated actions, inter alia, to rescind certain shareholders’ agreements, for injunctive relief and for damages, plaintiffs appeal from so much of an order of the Supreme Court, Westchester County, dated December 10, 1979, as denied their motions for two preliminary injunctions (one in each action) and granted certain injunctive relief in defendants’ favor. Defendant Philip J. Goetz cross-appeals from so much of the same order as denied his cross motion to dismiss the complaint in Action No. 2 and continued certain restraining orders. Order modified, on the law, by deleting therefrom the fourth, fifth and eighth decretal paragraphs thereof and substituting therefor a provision denying that branch of the cross motion in Action No. 1, which was for a preliminary injunction. As so modified, order affirmed insofar as appealed from, without costs or disbursements. Special Term erred in granting defendants’ cross motion for preliminary injunctive relief. In the absence of an appropriate counterclaim or cross claim and a demand for judgment thereon, the preliminary injunction is not available to the defendants (see CPLR 6301, 6001; see, also, 7A Weinstein-Korn-Miller, NY Civ Prac, par 6301.08; vol 7, par 6001.03). Additionally, in view of our affirmance of Special Term’s denial of the plaintiffs’ motions for preliminary injunctive relief, so much of the order on appeal as extended the temporary restraining orders dated August 1, 1979 and August 2, 1979, has been deleted. Rabin, J. P., Gulotta, Cohalan and O’Connor, JJ., concur.