Visual Equities Inc. v. Sotheby's, Inc.

199 A.D.2d 59, 604 N.Y.S.2d 117, 1993 N.Y. App. Div. LEXIS 11752

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 1993
• Status: Published

Opinion

Order, Supreme Court, New York County (Myriam Altman, J.), entered July 6, 1993, which modified an order entered July 2, 1993, requiring plaintiff to post a $1 million undertaking as a condition of continuing a temporary restraining order preventing Sotheby’s from delivering an original print of the Declaration of Independence to Kaller Historical Documents ("Kaller”), unanimously modified, on the law, the facts and in the exercise of discretion to the extent of reducing the undertaking to the amount of $278,500, with costs. Appeal from the order of said court and Justice, entered July 2, 1993, unanimously dismissed as super-ceded by the appeal from the aforesaid order, without costs.

The undertaking should be reduced to reflect those damages defendant may incur if the court determines that the preliminary injunction was erroneously granted (Margolies v Encounter, Inc., 42 NY2d 475; CPLR 6312 [b]). The IAS Court’s consideration of Kaller’s possible damages from plaintiff’s refusal to sell its copy of the Declaration of Independence was speculative since no showing was made of any damages Kaller may incur. (Compare, Cross Props. v Brook Realty Co., 76 AD2d 445; McClosky v Long Is. Hockey Club, 18 AD2d 1023.) Concur—Murphy, P. J., Rosenberger, Ross and Nardelli, JJ.