Litwa v. Litwa , 452 N.Y.S.2d 241 ( 1982 )

In an action to compel defendant to turn over to plaintiff the corporate books and records of Price Busters, Inc., and to compel defendant to disassociate himself from the corporation, defendant appeals from an order of the Supreme Court, Westchester County (Coppola, J.), dated February 3, 1982, which, inter alia, directed him not to interfere with the operation by plaintiff of the two stores owned by Price Busters, Inc., pending trial of the action. Order modified, on the law, by adding thereto a provision that plaintiff shall give an undertaking in the amount of $40,000, as provided in CPLR 6312. As so modified, order affirmed, without costs or disbursements, and plaintiff shall give the undertaking within 20 days after service upon him of a copy of the order to be entered hereon, with notice of entry. Although Special Term properly granted a preliminary injunction on the basis of the affidavits before it, there was no authority to do so without requiring the plaintiff to give an undertaking, as mandated by statute (CPLR 6312, subd [b]; see Smith v Boxer, 45 AD2d 1054; Blumberg v Thomaston-Spruce Corp., 46 AD2d 671; Olechna v Town of Smithtown, 51 AD2d 1036; City Store Gates Mfg. Corp. v United Steel Prods., 79 AD2d 671). Gibbons, J. P., Weinstein, Gulotta and Thompson, JJ., concur.