Opinion
February 8, 1999
Appeal from the Supreme Court, Kings County (Jackson, J.).
Ordered that the order dated November 13, 1997, is affirmed insofar as appealed from; and it is further,
Ordered that the order dated March 20, 1998, is affirmed; and it is further,
Ordered that the respondents are awarded one bill of costs.
The Supreme Court properly found that questions of fact precluded summary judgment on that branch of the appellants' cross motion which was to recover damages they incurred because of the plaintiffs' "use and occupancy" of the appellants' property in the period following the improperly issued preliminary injunction ( see, Zuckerman v. City of New York, 49 N.Y.2d 557).
Moreover, we find that the appellants failed to prove their claims for counsel fees and debt service damages allegedly sustained by reason of the improper granting of a preliminary injunction to the plaintiffs ( see, CPLR 6312 N.Y.C.P.L.R. [b]; Cross Props. v. Brook Realty Co., 76 A.D.2d 445). Accordingly, the Supreme Court properly denied the appellants' request for payment of the entire undertaking.
The appellants' remaining contentions are without merit.
Santucci, J. P., Joy, Altman and Luciano, JJ., concur.