Opinion
May 18, 1982
Order, Supreme Court, New York County (Pecora, J.), entered July 24, 1981 which denied plaintiff's motion for a preliminary and permanent injunction restraining defendant from receiving or in any manner exercising dominion over the proceeds of a New York State Lottery prize; for an order directing defendant to deposit any such proceeds with her attorney in an escrow fund; and for an order directing defendant New York State Division of the Lottery, Department of Taxation and Finance, to make any such payments to said escrow fund as they become due; and which directed said division of the lottery to pay to defendant and her counsel "without restriction, the lotto prize funds", unanimously modified, on the law and the facts and in the exercise of discretion, to the extent of striking the last decretal paragraph of said order, and otherwise affirmed, without costs. We agree with Special Term that there is no basis for an injunction. For the reasons stated by Justice Pecora, plaintiff's motion was properly denied. However, the last decretal paragraph of the order denying the motion appears to resolve the entire issue between the parties without a trial or other proceedings, or at least could be so construed. The relief granted in said paragraph was not sought by the defendant. Nor is she entitled to it. Accordingly, we have directed that it be stricken, and otherwise affirm.
Concur — Sandler, J.P., Sullivan, Markewich, Fein and Milonas, JJ.