CONGREGATION YETEV LEV SATMAR INC v. 26 ADAR CORP (1999)

In an action pursuant to RPAPL article 15 to compel the determination of a claim to real property, the defendants 26 Adar N.B. Corp. and Nachman Brach appeal from (1) so much of an order of the Supreme Court, Kings County (Jackson, J.), dated November 13, 1997, as denied their cross motion for summary judgment for the entire amount of an undertaking posted by the plaintiff Congregation Yetev Lev D'Satmar, Inc., as a condition of a preliminary injunction, and for damages resulting from the use and occupancy by the plaintiffs of the appellants' property during the period following the granting of the preliminary injunction, and (2) an order of the same court, dated March 20, 1998, which, following a hearing of the same court (Marano, J.H.O.), denied their application for damages sustained by reason of the granting of a preliminary injunction.

ORDERED that the order dated November 13, 1997, is affirmed insofar as appealed from;  and it is further,

ORDERED that the order dated March 20, 1998, is affirmed;  and it is further,

ORDERED that the respondents are awarded one bill of costs.

 The Supreme Court properly found that questions of fact precluded summary judgment on that branch of the appellants' cross motion which was to recover damages they incurred because of the plaintiffs' “use and occupancy” of the appellants' property in the period following the improperly issued preliminary injunction (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).

 Moreover, we find that the appellants failed to prove their claims for counsel fees and debt service damages allegedly sustained by reason of the improper granting of a preliminary injunction to the plaintiffs (see, CPLR 6312 [b];  Cross Props. v. Brook Realty Co., 76 A.D.2d 445, 430 N.Y.S.2d 820).   Accordingly, the Supreme Court properly denied the appellants' request for payment of the entire undertaking.

The appellants' remaining contentions are without merit.

MEMORANDUM BY THE COURT.