Samra v. Sikh Center of New York, Inc.

16 A.D.3d 659, 792 N.Y.S.2d 548, 2005 N.Y. App. Div. LEXIS 3252

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 28, 2005
• Status: Published

Opinion

— In an action, inter alia, to set aside a lease, the defendants appeal from so much of an order of the Supreme Court, Queens County (Weiss, J.), dated August 11, 2003, as denied their cross motion for an award of an attorney’s fee incurred in vacating a temporary restraining order contained in an order of the same court dated February 5, 2003, which prohibited them, inter alia, from implementing the subject lease.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied the appellants’ cross motion for an award of an attorney’s fee incurred in vacating a temporary restraining order contained in an order dated February 5, 2003, prohibiting them, inter alia, from implementing the lease at issue in this action. No undertaking was posted as a condition for the temporary restraining order (see CPLR 6313 [c]). The appellants failed to allege malice on the part of the plaintiffs in seeking the temporary restraining order. Accordingly, they may not recover an award of an attorney’s fee incurred in vacating that order (see RS Paralegal & Recovery Servs. v Poughkeepsie Sav. Bank F.S.B., 190 AD2d 660 [1993]; Gardino v Rescignano, 152 AD2d 911 [1989]; cf. Honeywell, Inc. v Technical Bldg. Servs., 103 AD2d 433, 434 [1984]).

The appellants’ remaining contentions are either irrelevant to their limited appeal, unpreserved for appellate review, or without merit. Adams, J.P., Santucci, Goldstein and Crane, JJ., concur.