Larson Wulff & Co. v. Margulies

Appellate Division of the Supreme Court of New York

Larson Wulff & Co. v. Margulies

64 A.D.2d 959, 408 N.Y.S.2d 796, 1978 N.Y. App. Div. LEXIS 12910

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 26, 1978

StatusPublished

This text of 64 A.D.2d 959 (Larson Wulff & Co. v. Margulies) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Larson Wulff & Co. v. Margulies, 64 A.D.2d 959, 408 N.Y.S.2d 796, 1978 N.Y. App. Div. LEXIS 12910 (N.Y. Ct. App. 1978).

Pincite

Opinion

Order, Supreme Court, New York County, entered May 23, 1978, denying defendant’s motion to dismiss the complaint, granting his motion for renewal and reargument and adhering in all respects to the court’s previous decision of April 27, 1978, unanimously modified, on the law, on the facts and in the exercise of discretion, with $60 costs and disbursements to appellant, to the extent of vacating the injunction and staying the action pending the completion of the arbitration proceedings between the parties and, except as thus modified, affirmed. Appeal from order, Supreme Court, [960]*960New York County, entered May 8, 1978, dismissed, without costs or disbursements. On the reargument of the grant of the preliminary injunction and denial of defendant’s cross motion for a stay of all proceedings pending the completion of arbitration proceedings, defendant presented in detailed fashion sufficient facts to compel a vacatur of the injunction. These facts militated against the likelihood of plaintiff’s success on the merits, and the requisite showing of irreparable injury if the injunction were not granted. Moreover, defendant satisfactorily explained his failure to present these facts on the initial application, by opting instead, on the advice of counsel, to limit his opposition to the legal argument that by virtue of his withdrawal from the firm, the plaintiff partnership lacked standing to sue, and on the further ground that the legal proceeding should be stayed pending the termination of arbitration proceedings between the parties. Special Term, invoking indecorous judicial language, summarily dismissed these cogent arguments. This was error. Inasmuch as there was no justification for the preliminary injunction, this action should have been stayed pending the completion of the arbitration proceeding. We do find in the record sufficient factual basis to vest plaintiff with standing to sue and agree the complaint should not have been dismissed. Concur—Lupiano, J. P., Birns, Fein, Markewich and Sullivan, JJ.

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Order, Supreme Court, New York County, entered May 23, 1978, denying defendant’s motion to dismiss the complaint, granting his motion for renewal and reargument and adhering in all respects to the court’s previous decision of April 27, 1978, unanimously modified, on the law, on the facts and in the exercise of discretion, with $60 costs and disbursements to appellant, to the extent of vacating the injunction and staying the action pending the completion of the arbitration proceedings between the parties and, except as thus modified, affirmed. Appeal from order, Supreme Court, [960]*960New York County, entered May 8, 1978, dismissed, without costs or disbursements. On the reargument of the grant of the preliminary injunction and denial of defendant’s cross motion for a stay of all proceedings pending the completion of arbitration proceedings, defendant presented in detailed fashion sufficient facts to compel a vacatur of the injunction. These facts militated against the likelihood of plaintiff’s success on the merits, and the requisite showing of irreparable injury if the injunction were not granted. Moreover, defendant satisfactorily explained his failure to present these facts on the initial application, by opting instead, on the advice of counsel, to limit his opposition to the legal argument that by virtue of his withdrawal from the firm, the plaintiff partnership lacked standing to sue, and on the further ground that the legal proceeding should be stayed pending the termination of arbitration proceedings between the parties. Special Term, invoking indecorous judicial language, summarily dismissed these cogent arguments. This was error. Inasmuch as there was no justification for the preliminary injunction, this action should have been stayed pending the completion of the arbitration proceeding. We do find in the record sufficient factual basis to vest plaintiff with standing to sue and agree the complaint should not have been dismissed. Concur—Lupiano, J. P., Birns, Fein, Markewich and Sullivan, JJ.

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Bluebook (online)

64 A.D.2d 959, 408 N.Y.S.2d 796, 1978 N.Y. App. Div. LEXIS 12910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/larson-wulff-co-v-margulies-nyappdiv-1978.