Opinion
October 7, 1991
Appeal from the Supreme Court, Queens County (Smith, J.).
Ordered that the appeal and cross appeal from the order dated March 22, 1991, are dismissed, without costs or disbursements, as that order was superseded by the amended order dated April 3, 1991, and it is further,
Ordered that the amended order dated April 3, 1991 is modified, as a matter of discretion, by (1) deleting the provision thereof requiring the plaintiff to pay the defendant arrears in the sum of $218,291.62, and substituting a provision requiring the plaintiff to pay the defendant the sum of $159,250 representing alleged arrears, (2) deleting the provision thereof requiring the plaintiff to continue to pay the defendant $39,395.83 per month for heating, ventilating, and air conditioning services and substituting therefor a provision requiring the plaintiff to continue making such payments at the rate of $31,000, per month, and (3) deleting the provision thereof requiring the plaintiff to post an undertaking in the amount of $200,000 and substituting therefor a provision requiring the plaintiff to post an undertaking in the amount of $500,000; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and it is further,
Ordered that the appeal from the order dated April 15, 1991, is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument.
The imposition of reasonable conditions on the issuance of a preliminary injunction is a necessary and incidental power of the courts (see, Town of E. Hampton v. Buffa, 157 A.D.2d 714, 716; Paddock Const. v. Automated Swimpools, 130 A.D.2d 894; see also, 12 Carmody-Wait 2d, Injunctions, § 78:76). A review of the record reveals that continued payments by the plaintiff of $31,000 per month for heating, ventilating, and air conditionings services, and the payment to the defendant of $159,250, representing alleged arrears, in combination with the plaintiff's posting of an undertaking in the amount of $500,000 pursuant to statutory mandate (see, CPLR 6312 [b]; see, Sutton, DeLeeuw, Clark Darcy v. Beck, 155 A.D.2d 962), will adequately serve to protect the defendant's interest during the pendency of this action.
We find that the trial court correctly denied the defendant's cross motion to dismiss the complaint based upon the Statute of Frauds (General Obligations Law § 5-701) and General Obligations Law § 15-301 (1), with leave to the defendant to reassert that claim as an affirmative defense. Lawrence, J.P., Miller, Ritter and Copertino, JJ., concur.