Jodeya Trading Corp. v. Metropolitan Transportation Authority , 188 A.D.2d 439 ( 1992 )

Order, Supreme Court, New York County (Carmen Beauchamp Ciparick, J.), entered on or about June 23, 1992, inter alia, denying plaintiffs motion for the release of its undertaking, and granting defendant’s cross-motion for damages, and referring the issue to a Special Referee, unanimously affirmed, without costs.

The parties entered into a two-month lease, at the end of which plaintiff refused to vacate, claiming it was entitled to a three-year lease. Plaintiff secured a temporary restraining order and preliminary injunction, the latter conditioned upon plaintiffs posting of an undertaking, which it did (see, Preston Corp. v Fabrication Enters., 68 NY2d 397, 404-405; Matter of Technicare Corp. v New York City Health & Hosps. Corp., 131 AD2d 371, 373).

The court subsequently determined, and we agree, that plaintiff’s claim was without merit and that plaintiff was, therefore, a holdover tenant. In light of the nature of plaintiffs occupancy during the period in which the preliminary injunction was in effect, plaintiff is liable for damages. Accordingly, plaintiffs motion for release of its undertaking was properly denied. Concur — Carro, J. P., Rosenberger, Ellerin, Kupferman and Kassal, JJ.