Rourke Developers, Inc. v. Cottrell-Hajeck Inc. , 727 N.Y.S.2d 667 ( 2001 )

—Cardona, P. J.

Appeal from an order of the Supreme Court (Sheridan, J.), entered December 12, 2000 in Saratoga County, which, inter alia, granted plaintiffs motion for a preliminary injunction.

This is an action for a permanent injunction brought by plaintiff, a residential subdivision developer, seeking to restrain defendant, a contractor, from interfering with the closings of certain parcels by withholding partial releases from a filed confession of judgment securing defendant’s payment for infrastructure improvements. A preliminary injunction to that effect was granted by Supreme Court. Defendant argues, in this appeal, that the grant of a preliminary injunction without Supreme Court providing for an undertaking was improper and, therefore, the preliminary injunction should be vacated.

Significantly, when moving for a preliminary injunction, a plaintiff is required to post an undertaking in an amount fixed by the court (see, CPLR 6312 [b]) and this requirement may not be waived (see, Smith v Boxer, 45 AD2d 1054). Accordingly, we agree with defendant that an undertaking should have been required. However, the absence thereof only rendered the injunction voidable, not void (see, Duane Sales v Hayes, 87 AD2d 730, 731; McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C6312:2, at 363). Since Supreme Court failed to require an undertaking in the instant matter, defendant’s remedy is remittal “to Supreme Court for the purpose of fixing the amount of the [undertaking]” (Cool Insuring Agency v Rogers, 125 AD2d 758, 759, appeal dismissed 69 NY2d 1037; see, Schwartz v Gruber, 261 AD2d 526; Duane Sales v Hayes, supra, at 731; City Store Gates Mfg. Corp. v United Steel Prods., 79 AD2d 671, 67.1-672).

Mercure, Crew III, Mugglin and Rose, JJ., concur. Ordered that the order is modified, on the law, without costs, by adding thereto a provision that plaintiff shall post an undertaking as provided in CPLR 6312 (b) in an amount to be fixed by the Supreme Court following a hearing, unless the parties stipulate to an amount therefor; matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.