Ratner v. Fountains Clove Road Apartments, Inc.

118 A.D.2d 843, 500 N.Y.S.2d 329, 1986 N.Y. App. Div. LEXIS 54696

Opinion

— In an action, inter alia, to permanently enjoin the defendants from canceling, reissuing or transferring certain shares of stock of a cooperative corporation, the plaintiffs appeal from an order of the Supreme Court, Richmond County (Felig, J.), dated March 25, 1985, which granted the defendants’ motion to dismiss the plaintiffs’ amended complaint.

Order reversed, with costs, amended complaint reinstated and matter remitted to the Supreme Court, Richmond County, for further proceedings consistent herewith.

Special Term’s determination that a prior order denying a preliminary injunction constituted the law of the case, requiring the dismissal of the plaintiffs’ amended complaint for a permanent injunction, is erroneous. It is well settled that the granting or denial of a motion for a preliminary injunction does not constitute the law of the case or an adjudication on the merits of the claim for a permanent injunction and, therefore, the issues must be tried as if no application for a preliminary injunction had been made (see, Walker Mem. Baptist Church v Saunders, 285 NY 462, 474; Albini v Stanco, 61 Misc 2d 813, 822, affd 32 AD2d 1042; 7A Weinstein-KornMiller, NY Civ Prac ¶¶ 6301.05, 6301.12). Mangano, J. P., Brown, Weinstein and Spatt, JJ., concur.