Opinion
November 3, 1997
Appeal from the Supreme Court, Dutchess County (Hillery, J.).
Ordered that the appeal from the order dated May 10, 1996, is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated December 14, 1995, is affirmed insofar as appealed from; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
Contrary to the defendant's contentions, the court did not improvidently exercise its discretion in fixing the amount of the undertaking at $30,000. The plain language of CPLR 6312 (b) directs the court to fix the undertaking in an amount that will compensate the defendant for damages incurred "by reason of the injunction", in the event it is determined that the plaintiff was not entitled to the injunction (see, Margolies v. Encounter, Inc., 42 N.Y.2d 475; Straisa Realty Corp. v. Woodbury Assocs., 185 A.D.2d 96). The fixing of the amount of an undertaking is a matter within the sound discretion of the court (see, Zonghetti v Jeromack, 150 A.D.2d 561). So long as the court has not improvidently exercised its discretion its determination should not be disturbed (see, Kazdin v. Putter, 177 A.D.2d 456; Gambar Enters. v. Kelly Servs., 69 A.D.2d 297). Here, the court did not improvidently exercise its discretion when it directed the plaintiff to post an undertaking for $30,000. The amount of the undertaking is rationally related to the amount of the defendant's potential damages flowing from the interruption of his management duties for the plaintiff's real property, in the event that it is determined that the plaintiff was not entitled to the preliminary injunction (see, Kazdin v. Putter, supra; 61 W. 62nd Owners Corp. v. Harkness Apt. Owners Corp., 173 A.D.2d 372).
We have reviewed the defendant's remaining contentions and find them to be without merit.
Miller, J. P., Sullivan, Pizzuto and Friedmann, JJ., concur.