Prozeralik v. Johnston

182 A.D.2d 1108

Opinion

Order unanimously reversed on the law with costs and preliminary injunction vacated. Memorandum: Supreme Court erred in granting sua sponte a preliminary injunction enjoining defendant from disposing of the boat and automobile pending the conclusion of the underlying action. There has been no showing that those chattels are unique (see, CPLR 7109 [a]; Morse v Penzimer, 58 Misc 2d 156, 159). Plaintiffs’ claim is essentially one for money damages, and plaintiffs have made no evidentiary showing that, should they prevail in this action, defendant would be financially unable to pay any judgment that might be entered against him (see, Sutton, DeLeeuw, Clark & Darcy v Beck, 155 AD2d 962, 963). The court also erred in not requiring plaintiffs to post an undertaking (see, CPLR 6312 [b]). (Appeal from Order of Supreme Court, Erie County, Rath, Jr., J. — Preliminary Injunction.) Present — Callahan, J. P., Boomer, Lawton, Boehm and Davis, JJ.