Opinion
November 4, 1971
The motion for a stay is hereby granted. Without prejudging the merits of the appeal, there is an apparent conflict between the denial of the mandatory injunction by Special Term and the order which was signed. Moreover, a stay at this juncture is appropriate in view of the well-settled rule that a mandatory injunction "if ever permissible in advance of final judgment, is plainly inappropriate unless the undisputed facts are such that a trial is a futility". ( Yome v. Gorman, 242 N.Y. 395, 401-402; see, also, Ultra Fuel Corp. v. Johnston, 30 A.D.2d 801.) Nor is there any warrant for deferring a trial until the Day Calendar of May 1972, when an immediate trial is clearly indicated. The parties however, may, if so advised, permit another contractor to finish the job, without prejudice to their mutual claims in arbitration. But, to bring on the instant appeal with all deliberate speed, leave is granted to have the appeal heard upon the original record; and appellant is directed to procure the original record and appellant's points to be served and filed on or before November 22, 1971, with notes of issue for December 7, 1971; and respondents' points to be served and filed on or before November 30, 1971; with reply points, if any, to be served and filed on or before December 3, 1971.
Concur — Stevens, P.J., Capozzoli, McGivern, Markewich and Tilzer, JJ.