Finesod v. Uzan

Order, Supreme Court, New York County (Diane A. Lebedeff, J.), entered April 3, 1991, which, inter alia, directed forfeiture of plaintiffs undertaking, unanimously affirmed, with costs.

The undertaking in issue was posted in connection with a preliminary injunction preventing defendants from transferring the shares allocated to the apartment pending determination of plaintiffs right to have such shares specifically transferred to him. When defendant sponsor acknowledged plaintiffs right to the shares, plaintiffs refusal at that time to execute the agreement he had been seeking to specifically enforce by way of this action was the functional equivalent of a discontinuance of the action without defendants’ consent and a determination that he was not entitled to the injunction (Preston Corp. v Fabrication Enters., 68 NY2d 397 , 404). Concur — Murphy, P. J., Ellerin, Wallach, Asch and Rubin, JJ.