Brooke Shields v. Gross

Supreme Court of New York, Special Term · 1983 · Contracts

ContractsInjunctionsUndertakingsMalicious ProsecutionRes Judicatawrongful injunctionpreliminary injunctionundertaking

Facts

In earlier litigation, Shields obtained temporary and preliminary injunctive relief preventing Gross from selling or using certain nude photographs taken of her when she was 10 years old, although she ultimately failed to secure permanent relief as to advertising or trade use. To obtain that relief, she posted undertakings of $5,000 and $45,000, but those undertakings were later discharged, and the discharge was affirmed. After the Court of Appeals ruled against her on the merits, Shields obtained a third preliminary injunction pending reargument and posted a $30,000 undertaking to protect Gross against loss in the news value of the photographs during that period. Gross had previously brought, and lost, a malicious prosecution action based on the earlier injunctions, and he then brought this second action seeking legal fees, lost income, costs, and disbursements from the allegedly wrongful injunctions.

Issue

When a plaintiff obtains injunctive relief that is later determined to have been unwarranted, may the enjoined defendant recover damages in a plenary action beyond the amount or existence of the undertakings, absent a viable malicious prosecution claim? Also, may Gross recover on undertakings that were previously discharged, and may he recover on the later $30,000 undertaking?

Rule

Under New York law, absent malicious procurement, damages resulting from a wrongful injunction are recoverable only on the injunction undertaking or through an action for malicious prosecution. CPLR 6315 is merely a procedural mechanism for ascertaining damages and does not create a substantive right to damages beyond the undertaking; where an undertaking has been discharged and that discharge has been finally determined, recovery on that undertaking is barred.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Albany, Nina Kessler obtained a preliminary injunction against Orion Street Gallery, preventing it from selling a disputed set of prints while ownership was litigated. She posted a $25,000 undertaking, later lost on the merits, and the gallery then brought a separate action seeking $180,000 in lost profits and operating losses without alleging malice or any independent benefit Nina gained from the injunction.

What is the strongest argument for limiting the gallery's recovery?

Explanation. The majority held that, absent malicious procurement or a distinct unjust-enrichment situation, damages from a wrongful injunction are recoverable only on the undertaking. CPLR 6315 is procedural only and does not expand substantive liability beyond the undertaking. Losing on the merits does not itself create open-ended liability. (Derived from Brooke Shields v. Gross (n.d.).)