Opinion
2017–04281 Index No. 10673/07
09-19-2018
CHAO–YU C. HUANG, respondent, v. HARRY AN–LING SHIH, et al., appellants.
Liu & Shields LLP, Flushing, N.Y. (Carolyn Shields of counsel), for appellants. Kevin Kerveng Tung, P.C., Flushing, NY, for respondent.
Liu & Shields LLP, Flushing, N.Y. (Carolyn Shields of counsel), for appellants.
Kevin Kerveng Tung, P.C., Flushing, NY, for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, COLLEEN D. DUFFY, JJ.
DECISION & ORDER
In an action for specific performance of a contract for the sale of real property, the defendants appeal from an order of the Supreme Court, Queens County (Howard G. Lane, J.), entered September 18, 2015. The order, upon the prior granting, in an order of the same court entered March 17, 2015, of the plaintiff's motion for a preliminary injunction, determined that an undertaking was not required.
ORDERED that the order entered September 18, 2015, is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Queens County, for the plaintiff to post an undertaking pursuant to CPLR 6312(b) in an amount to be fixed by the court.
The plaintiff commenced this action for specific performance of a contract for the sale of certain real property in Queens. The plaintiff moved for a preliminary injunction, inter alia, restraining the defendants from selling, transferring, or encumbering the subject property. In an order entered March 17, 2015, the Supreme Court granted the plaintiff's motion for a preliminary injunction. In the order appealed from, the court determined that an undertaking was not required. The defendants appeal.
"[U]pon the granting of a preliminary injunction, a plaintiff ‘shall give an undertaking in an amount to be fixed by the court’ " ( Mobstub, Inc. v. www.staytrendy.com, 153 A.D.3d 809, 810, 60 N.Y.S.3d 356, quoting CPLR 6312[b] ). Thus, "[w]hile fixing the amount of an undertaking when granting a motion for a preliminary injunction is a matter within the sound discretion of the court, CPLR 6312(b) clearly and unequivocally requires the party seeking an injunction to give an undertaking" ( Griffin v. 70 Portman Rd. Realty, Inc., 47 A.D.3d 883, 884, 850 N.Y.S.2d 603 ; see Putter v. Singer, 73 A.D.3d 1147, 1149, 901 N.Y.S.2d 382 ; Livas v. Mitzner, 303 A.D.2d 381, 383, 756 N.Y.S.2d 274 ).
The defendants' remaining contentions either are without merit or not properly before this Court.
Accordingly, we reverse the order and remit the matter to the Supreme Court, Queens County, for the plaintiff to post an undertaking pursuant to CPLR 6312(b) in an amount to be fixed by the court.
DILLON, J.P., LEVENTHAL, ROMAN and DUFFY, JJ., concur.