Opinion
13263N-13263NA Index No. 652971/20 Case No. 2020-03604
03-04-2021
SHELBOURNE BRF LLC et al., Plaintiffs–Respondents, v. SR 677 BWAY LLC, Defendant–Appellant.
Alston & Bird LLP, New York (John Doherty of counsel), for appellant. Jacobowitz Newman Tversky LLP, Cedarhurst (Nathan Cohen of counsel), for respondents.
Alston & Bird LLP, New York (John Doherty of counsel), for appellant.
Jacobowitz Newman Tversky LLP, Cedarhurst (Nathan Cohen of counsel), for respondents.
Kern, J.P., Oing, Singh, Moulton, JJ.
Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered on or about August 3, 2020, which granted plaintiffs' motion for a preliminary injunction and ordered that plaintiffs post an undertaking in the amount of $100,000, unanimously modified, on the law and the facts, to vacate the injunction and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered August 20, 2020, which denied defendant's motion for reargument (incorrectly styled a motion for renewal and reargument), unanimously dismissed, without costs, as taken from a nonappealable order.
Although the order that granted the preliminary injunction expired on October 15, 2020, we will not treat the appeal therefrom as moot. The propriety of the injunction is properly before us because an undertaking was furnished in connection with the injunction (see Wilhelmina Models, Inc. v. Abdulmajid, 67 A.D.2d 852, 413 N.Y.S.2d 21 [1st Dept. 1979] ).
As to the propriety of the preliminary injunction, we find that plaintiffs failed to demonstrate the requisite irreparable harm. Notwithstanding the existence of the COVID–19 pandemic, the feared loss of an investment can be compensated in money damages (see Broadway 500 W. Monroe Mezz II LLC v. Transwestern Mezzanine Realty Partners II, LLC, 80 A.D.3d 483, 915 N.Y.S.2d 248 [1st Dept. 2011] ). Although the undertaking may have been inadequate, we decline to increase the amount of the undertaking given the vacatur of the preliminary injunction (see 1414 Holdings, LLC v. BMS–PSO, LLC, 167 A.D.3d 425, 427, 90 N.Y.S.3d 18 [1st Dept. 2018] ).
We have considered the parties' remaining contentions and find them unavailing.