Edgeworth Food Corp. v. Stephenson

53 A.D.2d 588, 385 N.Y.S.2d 64, 1976 N.Y. App. Div. LEXIS 13232

Opinion

Order, Supreme Court, New York County, entered April 21, 1976, denying plaintiffs motion for a preliminary injunction, is unanimously affirmed. Respondent shall recover of appellant $40 costs and disbursements of this appeal. Plaintiff has failed to show a clear right to the drastic remedy of preliminary injunction. (Park Terrace Caterers v McDonough, 9 AD2d 113, 114.) There are questions as to whether time was of the essence in this contract and whether plaintiff was able and willing to perform on the stipulated closing date. Furthermore, the balance of convenience and relative hardship—the harm to plaintiff from denial of the injunction as against the harm to defendant from granting it—does not tip in plaintiff’s favor. Defendant has a contract to sell the business on substantially more favorable terms, which may be lost if preliminary injunction delays the transaction too long. Concur—Kupferman, J. P., Silverman, Capozzoli, Lane and Nunez, JJ.