Opinion
July 12, 1989
Appeal from the Supreme Court, Onondaga County, Aronson, J.H.O.
Present — Dillon, P.J., Doerr, Boomer, Balio and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Plaintiffs brought an action for injunctive and declaratory relief pursuant to RPAPL article 15 and obtained a temporary restraining order (see, CPLR 6313 [a]) prohibiting defendants from clearing a parcel of land. The court did not require plaintiffs to give an undertaking (see, CPLR 6313 [c]). Defendants counterclaimed for damages sustained by reason of the temporary restraining order. After a hearing, the court denied plaintiffs' application for a preliminary injunction, vacated the temporary restraining order and dismissed defendants' counterclaim. Defendants appeal from the order dismissing their counterclaim, and we affirm.
Since the temporary restraining order was not conditioned on the posting of an undertaking, defendants cannot seek damages. "Where, for whatever reason, an undertaking is not posted as a condition for a preliminary injunction or a temporary restraining order, the enjoined party is without a remedy unless he can prove malice" (Honeywell, Inc. v Technical Bldg. Servs., 103 A.D.2d 433, 434; see also, Doran Assocs. v Envirogas, Inc., 112 A.D.2d 766, 768, appeal dismissed 66 N.Y.2d 758). Defendants produced no proof of malice and, therefore, their counterclaim was properly dismissed.