Solomon v. RYTY Inc.

Order, *276Supreme Court, Bronx County (Janice Bowman, J.), entered June 10, 2002, which denied defendants’ motion for an order vacating the prior orders of the same court (Joseph Giamboi, J.), entered on or about June 20, 2001 and July 10, 2001, which granted plaintiffs’ request for injunctive relief, unanimously modified, on the law, to the extent of requiring plaintiffs to post an undertaking in an amount to be fixed by Supreme Court after a hearing, unless the parties stipulate to an amount, and otherwise affirmed, without costs.

Defendants motion, denominated as one to vacate a preliminary injunction and to dismiss, was for the most part properly characterized by the motion court as one for renewal, and then denied, since defendants failed to provide an excuse for not having submitted the new material, a deed, at the time of the original motion (see Kim v City of New York, 256 AD2d 83, lv denied 93 NY2d 896; see also Matter of Patriot Sec. v Cantor Fitzgerald Sec., 226 AD2d 216). We modify only to direct the posting of an undertaking in connection with the grant of plaintiffs’ request for a preliminary injunction (see CPLR 6312 [b]; Rourke Devs. v Cottrell-Hajeck Inc., 285 AD2d 805). Absent a stipulation, the Supreme Court should determine its amount after a hearing. Concur — Tom, J.P., Mazzarelli, Ellerin, Williams and Marlow, JJ.