We respectfully dissent. The holding of the majority, which erroneously equates defendant’s entitlement to recover damages pursuant to CPLR 6312 (b) with whether defendant has prevailed on the merits, violates the holding of the Court of Appeals in Margolies v Encounter, Inc. (42 NY2d 475). The majority cites only one case at the appellate level for its premise that a judgment in favor of defendant constitutes a final decision that plaintiff was not entitled to a preliminary injunction (see, Dooley v Anton, 14 AD2d 60). However, this case was decided some 16 years before the Court of Appeals decision in Margolies (supra), and we submit that Dooley (supra) has no vitality in light of the subsequent holding of the Court of Appeals in Margolies (supra). The position taken today by the majority—that defendant’s entitlement to resort to the undertaking posted by plaintiff to recover its damages is dependent upon whether plaintiff has prevailed on the merits of the action—was specifically rejected by the Court of Appeals in Margolies (supra, p 479). The court stated: "the statute refers to a final determina*1000tion that the plaintiffs were not entitled to [a] preliminary injunction, rather than a determination with respect to their right to a permanent injunction or other favorable outcome on the merits of the main action. The proper focus is on the propriety of the issuance of the preliminary injunction when it was granted at the commencement of the action” (Margolies v Encounters, Inc., supra, p 479; emphasis added). The court further held: "The defendant’s right to damages depends on whether the plaintiff was entitled to the preliminary injunction, not on whether the defendant eventually prevails on the merits” (Margolies v Encounter, Inc., supra, p 479; emphasis added). In holding as they do today, the majority has chosen to ignore this express language in Margolies (supra) in an effort to substitute their own sense of what is "fair” and "just”.
We find completely unpersuasive the majority’s attempt to distinguish Margolies (supra) on the ground that, in that case, the action was discontinued on consent, whereas in the present case the action proceeded to a trial on the merits. The final outcome in the underlying action is irrelevant, and the fact that the action was discontinued or resolved in a trial on the merits is a distinction without a difference. It is obvious that the Legislature, in enacting CPLR 6312, has not seen fit to attach any significance to the final outcome of the action (see, Margolies v Encounter, Inc., supra, p 480). In their holding, the majority refuse to honor the express language and intent of the statute.
Clearly, defendants are not entitled to damages, pursuant to CPLR 6312 (b), if it is finally determined that plaintiffs were entitled to the preliminary injunction when it was issued. Rather than proceeding directly to trial, defendants chose to have the question of the propriety of the preliminary injunction reviewed by this court in an expedited appeal. When this court affirmed the granting of the preliminary injunction, it determined plaintiffs’ entitlement to the same. This determination was not appealed; therefore, it has become the law of the case, and no further determination is either appropriate or necessary. Because the propriety of the preliminary injunction has been finally determined, the hearing officer properly discharged plaintiffs’ undertaking. We do not share in the concern of the majority that defendants are being penalized for their decision to appeal from the order granting the preliminary injunction. It was defendants’ choice to litigate that issue prior to trial. Plaintiffs were required to defend the issuance of the preliminary injunction in a prior expedited appeal and were successful. We know of no authority which *1001would require them to relitigate the identical issue simply because they were unsuccessful in their action seeking a permanent injunction. To hold otherwise is to regard our earlier decision as an advisory opinion, something in which we do not indulge, and plaintiffs’ victory on appeal as meaningless. Such interpretation of the judicial process is simply wrong. (Appeal from order of Supreme Court, Herkimer County, Aronson, J. H. O.—discharge undertaking.) Present— Callahan, J. P., Doerr, Boomer, Green and Pine, JJ.