Time Warner Cable v. Brustowsky

233 A.D.2d 150, 649 N.Y.S.2d 785, 1996 N.Y. App. Div. LEXIS 11484

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1996
• Status: Published

Opinion

—Order and judgment (one paper), Supreme Court, New York County (Edward Lehner, J.), entered August 14, 1995, which, inter alia, granted defendant’s motion for summary judgment on his first counterclaim for interest and dismissed all of defendant’s other counterclaims, unanimously modified, on the law, to the extent of denying defendant’s motion in its entirety and dismissing defendant’s first counterclaim, and otherwise affirmed, without costs.

While defendant landlord ultimately was successful on the merits in his declaratory judgment action against plaintiff tenant concerning the rent-offset issue, the Yellowstone preliminary injunction, as well as the accompanying undertaking, was nonetheless not erroneously granted by the court (see, e.g., Greenberg v Tamir, 178 AD2d 184). Accordingly, it cannot be said "that plaintiff was not entitled to [the] injunction”, and defendant’s counterclaim was drawn to stand on that allegation alone. Neither damages nor statutory interest is recoverable as a result thereof (CPLR 6312 [b]; see, Margolies v Encounter, Inc., 42 NY2d 475, 479). Nor does the parties’ lease provide a basis for an award of interest in these circumstances. Similarly, attorneys’ fees are not recoverable herein as there is no lease provision for such relief under the circumstances (Hooper Assocs. v AGS Computers, 74 NY2d 487, 491).

Defendant’s counterclaims of fraud, malicious prosecution and defamation and slander fail to state causes of action for such relief.

We have considered the parties’ remaining contentions for affirmative relief and find them to be without merit. Concur— Sullivan, J. P., Rosenberger, Ellerin, Wallach and Rubin, JJ.