SMILE CORP. v. FORMAN FIFTH LLC

The court properly found that plaintiff did not timely seek injunctive relief, since the order to show cause that brought about a temporary restraining order and tolled the cure period pending the hearing on the Yellowstone application was not obtained until after the cure period had ended and the notice of termination served ( see Weaver v Essex Owners Corp., 235 AD2d 369, lv denied 89 NY2d 1073). Plaintiffs contention that its action was timely pursuant to CPLR 205 (a) because it related back to an earlier action that had been timely commenced and dismissed is not properly before this Court, since this point was not raised before the Supreme Court ( see Deutsch v LoPresti, 272 AD2d 506, 507).

We find an insufficient basis for an award of sanctions against plaintiff's counsel.