Contrary to the dissent's view, the landlord cannot recover, as part of its counterclaim, damages it allegedly sustained as a result of the court's issuance of the preliminary injunction. “Absent proof of malice, not asserted here, there is no common-law or statutory right to recover damages sustained as a result of an improperly issued preliminary injunction” ( Thompson v. Topsoe, 237 A.D.2d 113, 113–114, 654 N.Y.S.2d 363 [1st Dept. 1997] ).

Having thus neutralized defendants at the court's discretionary phase, plaintiffs cannot now in good faith argue that defendants must also be deprived of a remedy because they were initially deprived of a voice. It is true that the general rule, derived from the common law (for genesis and evolution of this rule, see Gross v. Shields, 130 Misc 2d 641 [Sup Ct, NY Co, Greenfield, J, 1985]), is that a party who in good faith improperly obtains a restraint on another's actions is not liable for damages flowing from such restraint (see General Electric Company v. Metals Resources Group Limited, 293 AD2d 417, 419 [1st Dept 2002]; Honeywell, Inc. v. Technical Building Services, Inc., 103 AD2d 433, 435 [3rd Dept 1984]) other than by virtue of the contractual obligations imposed by an undertaking, if one is required to be posted (see Thompson v. Topsoe, 237 AD2d 113, 113-114 [1st Dept 1997]; RS Paralegal Recovery Services, Inc. v. Poughkeepsie Savings Bank FSB, 190 AD2d 660, 660-661 [2nd Dept 1993]). However, the key to this freedom to litigate issues with impunity is that the parties act in good faith.