319 SMILE CORP v. FORMAN FIFTH LLC (2007)

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered March 8, 2006, which, upon reargument of a prior order, denied plaintiff's motion for a stay of proceedings, a Yellowstone injunction and a temporary restraining order, and order, same court and Justice, entered August 9, 2006, which denied plaintiff's motion for reargument of the March 8 order and imposed sanctions on plaintiff's attorney, unanimously modified, on the law and the facts, to vacate the sanctions, and otherwise affirmed, without costs.

 The court properly found that plaintiff did not timely seek injunctive relief, since the order to show cause that brought about a temporary restraining order and tolled the cure period pending the hearing on the Yellowstone application was not obtained until after the cure period had ended and the notice of termination served (see Weaver v. Essex Owners Corp., 235 A.D.2d 369, 652 N.Y.S.2d 974 [1997], lv. denied 89 N.Y.2d 1073, 659 N.Y.S.2d 851, 681 N.E.2d 1298 [1997] ).   Plaintiff's contention that its action was timely pursuant to CPLR 205(a) because it related back to an earlier action that had been timely commenced and dismissed is not properly before this Court, since this point was not raised before the Supreme Court (see Deutsch v. LoPresti, 272 A.D.2d 506, 507, 708 N.Y.S.2d 441 [2000] ).

We find an insufficient basis for an award of sanctions against plaintiff's counsel.