Opinion
January 22, 1982
Appeal from the Supreme Court, Erie County, Ricotta, J.
Present — Dillon, P.J., Callahan, Doerr, Denman and Schnepp, JJ.
Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: The order of Special Term is overly broad in that the temporary injunction, in enjoining defendants from permitting the parking lot to be used between the hours of 10:00 P.M. and 7:00 A.M., is in derogation of the rights of leaseholders of the subject premises. Not having been made parties to the action, the franchise enjoyed by them by virtue of their tenancies may not be limited and the first and fourth decretal paragraphs of the order must be modified accordingly. In addition, the fifth decretal paragraph requiring defendants to notify and instruct the police authorities to ticket and tow away cars in the lot is deleted as an improvident exercise of discretion. While it was improper to grant the preliminary injunction without requiring that a suitable undertaking be provided (CPLR 6312, subd [b]) the absence thereof only renders the injunction voidable and an application may be made to Special Term to remedy this omission ( Olechna v. Town of Smithtown, 51 A.D.2d 1036).