Riss v. Astor-Broadway Holding Corp. , 24 Misc. 2d 128 ( 1960 )

Thomas A. Aurelio, J.

This is a motion to restrain the plaintiffs from filing Us pendens or applying for a receiver with respect to certain real property. The papers in companion motion No. 84 of March 16,1960 are incorporated in this motion by consent of the parties.

The plaintiffs in the instant motion have commenced an action ■ for a breach of contract which includes a leasehold covering real property. It is alleged that the defendants have breached the contract and the plaintiffs seek to recover judgment for the alleged breach. They also seek to recover from the individual defendants upon the guarantee.

The defendants have instituted an action, in which the instant plaintiffs have not yet appeared, which seeks a declaratory judgment that there has been no breach of the contract and that the contract did not prevent or preclude the corporate defendant from selling or mortgaging the leaseholds. The defendants seek to restrain the plaintiffs, as indicated above, setting forth that irreparable harm would flow should the plaintiffs proceed with the action sought to he restrained. The property in question involves a ground lease which was sold and transferred. There is presently under construction on one of the plots a 20-story and penthouse residential apartment building which is being sold on a co-operative plan. It is alleged that a substantial number of apartments have been sold to innocent parties not interested in the present litigation.

The papers disclose very serious and substantial issues which must be decided in the declaratory action. To permit the plaintiffs to proceed pending the disposition of such issues would result in irreparable damage to the defendants and innocent third parties. While the plaintiffs have argued the motion, they have made no appearance and submitted no papers on this motion.

The purpose of temporary injunctive relief is to maintain the status quo until the action has been finally determined (International Ry. Co. v. Barone, 246 App. Div. 450). The granting of the defendants’ application will not become the law of the case and will not impair the plaintiffs’ rights (Walker Mem. Baptist Church v. Saunders, 285 N. Y. 462).

The motion is, accordingly, granted upon the following conditions: (a) that the defendants maintain the status quo with respect to the mortgaging and other financial arrangements pending the trial of the actions and (b) that the defendants proceed to an early trial for which the certificate of readiness is waived.