Opinion
235N
February 20, 2003.
Order, Supreme Court, Bronx County (Janice Bowman, J.), entered June 10, 2002, which denied defendants' motion for an order vacating the prior orders of the same court (Joseph Giamboi, J.), entered on or about June 20, 2001 and July 10, 2001, which granted plaintiffs' request for injunctive relief, unanimously modified, on the law, to the extent of requiring plaintiff to post an undertaking in an amount to be fixed by Supreme Court after a hearing, unless the parties stipulate to an amount, and otherwise affirmed, without costs.
EVAN D. ROGERS, for Plaintiffs-Respondents.
THOMAS E. STAGG, for Defendants-Appellants.
Before: Tom, J.P., Mazzarelli, Ellerin, Williams, Marlow, JJ.
Defendant's motion, denominated as one to vacate a preliminary injunction and to dismiss, was for the most part properly characterized by the motion court as one for renewal, and then denied, since defendants failed to provide an excuse for not having submitted the new material, a deed, at the time of the original motion (see Kim v. City of New York, 256 A.D.2d 83, lv denied 93 N.Y.2d 896; see also Matter of Patriot Secs. v. Cantor Fitzgerald, 226 A.D.2d 216). We modify only to direct the posting of an undertaking in connection with the grant of plaintiffs' request for a preliminary injunction (see CPLR 6312(b);Rourke Devs., Inc. v. Cottrell-Hajeck Inc., 285 A.D.2d 805). Absent a stipulation, the Supreme Court should determine its amount after a hearing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.