South Bay Center, Inc. v. York Associates, Inc.

In an action for a declaratory judgment and other relief, in which the complaint had been dismissed and judgment had been awarded to defendant on its counterclaim, defendant appeals from an order of the Supreme Court, Nassau County, entered August 19, 1965, which, on defendant’s motion to ascertain the damages sustained by it by reason of the issuance against it of a preliminary injunction in the aetion (CPLR 6315), determined that defendant had sustained no damages. Order affirmed, with costs. We agree with the holding at Special Term that defendant sustained no damage by virtue of the issuance of the preliminary injunction. We find additionally that, had the injunction not been issued, defendant (a landlord) -would not necessarily have sooner regained possession of the property involved. Had it commenced a summary proceeding against its, tenant (the plaintiff), such proceeding might well have been consolidated with this action. Hence, it cannot be held that damage resulted to defendant solely by reason of the issuance of the preliminary injunction.