Opinion
January 16, 1992
Appeal from the Supreme Court, New York County (Beverly S. Cohen, J.).
Order of the same court and Justice, entered March 29, 1991, which, inter alia, extended the stay to three months from the date of service of a copy of the order with notice of entry, unanimously modified, on the law, the facts, and in the exercise of discretion, to remit the matter to the IAS court for a hearing on the amount of the undertaking to be filed, and otherwise affirmed, without costs.
Appeal from the decision of the same court and Justice, entered on or about January 25, 1991, denominated a decision and order but later clarified in the order of May 22, 1991, to be a decision only, unanimously dismissed as nonappealable, without costs.
Although the court's failure to direct the filing of an undertaking does not render its Yellowstone injunction void, the matter is remitted to the IAS court to fix an undertaking, unless the parties stipulate to an amount (see, Times Sq. Stores Corp. v. Bernice Realty Co., 107 A.D.2d 677, 681). Since the court's order of March 29, 1991 failed to conform strictly to the court's decision of January 25, 1991 concerning the commencement of the stay, the decision controls (Di Prospero v. Ford Motor Co., 105 A.D.2d 479), and the court should have resettled the March order when defendant moved to vacate same (see, Berg v Dimson, 151 A.D.2d 362, lv denied 75 N.Y.2d 703, rearg denied 75 N.Y.2d 947). The decision of January 25, 1991 is dismissed as nonappealable (Goldberg v. Orzac, 30 A.D.2d 697, affd 23 N.Y.2d 919). Under these circumstances, we enlarge the cure period to 10 days from service of a copy of this order, without prejudice to or consideration of plaintiff's ability to cure.
Concur — Wallach, J.P., Kupferman, Ross and Smith, JJ.