Prozeralik v. Johnston

Appellate Division of the Supreme Court of New York

Prozeralik v. Johnston

182 A.D.2d 1108

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

DecidedApril 24, 1992

StatusPublished

Cited by1 cases

This text of 182 A.D.2d 1108 (Prozeralik v. Johnston) 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.

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Prozeralik v. Johnston, 182 A.D.2d 1108 (N.Y. Ct. App. 1992).

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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.

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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.

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182 A.D.2d 1108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prozeralik-v-johnston-nyappdiv-1992.

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