Prince Lumber Co. v. CMC MIC Holding Co.

253 A.D.2d 718, 678 N.Y.S.2d 256, 1998 N.Y. App. Div. LEXIS 9774

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 29, 1998
• Status: Published

Opinion

Order, Supreme Court, New York County (Carol Arber, J.), entered March 14, 1997, which, in a declaratory judgment action concerning whether plaintiff tenant is in violation of its commercial lease with defendant landlord, inter alia, extended a temporary restraining order that was originally in effect “pending the hearing” of plaintiff’s motion for a Yellowstone injunction so as to keep it in effect pending the determination of such motion, and order, same court and Justice, entered April 23, 1997, which granted plaintiff’s motion for a Yellowstone injunction, unanimously affirmed, with costs.

It is clear that the failure to continue the temporary restraining order pending determination of the motion was inadvertent, and accordingly, defendant’s notice of termination served several days after the return date of the motion was properly vacated (see, Mann Theatres Corp. v Mid-Island Shopping Plaza Co., 94 AD2d 466, 476-477, affd 62 NY2d 930). Concur— Milonas, J. P., Rosenberger, Ellerin, Wallach and Williams, JJ.