Martin v. Rossi

New York Supreme Court

Martin v. Rossi

17 Misc. 2d 198, 191 N.Y.S.2d 66, 1959 N.Y. Misc. LEXIS 3600

DecidedMay 27, 1959

StatusPublished

This text of 17 Misc. 2d 198 (Martin v. Rossi) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Martin v. Rossi, 17 Misc. 2d 198, 191 N.Y.S.2d 66, 1959 N.Y. Misc. LEXIS 3600 (N.Y. Super. Ct. 1959).

Pincite

Opinion

Henry Epstein, J.

This is a motion for a temporary injunction in an action by the plaintiffs to reform a written agreement entered into between the parties and for an accounting. In connection therewith the action seeks to compel the retransfer of stock, a lease and security thereunder and for other relief.

This motion seeks to enjoin the defendants, pendente lite, from transferring that stock, from in any way disposing of the assets of the defendant corporation, from transferring or disposing of that lease and security, from disposing of certain promissory notes, from making any alteration or improvements in the. premises held by the defendant corporation and from electing new officers or directors of the defendant corporation.

[199]*199The action herein was commenced by the filing of a lis pendens and service of a summons and complaint in January of this year.

To obtain a temporary injunction, the plaintiffs must show irreparable injury suffered or reasonably to be expected. In order to receive this drastic relief the plaintiffs must show that an act is being done or threatened and imminent which is destructive of plaintiffs’ rights or cause material injury, as opposed to mere fanciful theoretical or possible injury. Not every apprehension of injury will move the court to exercise its discretionary power in the absence of irreparable injury or the threat thereof. This prerequisite the plaintiffs have failed to show. In addition the plaintiffs could have asked for this remedy at any time since January. Having failed to do so, they should not now be heard, particularly where no proof is offered of the necessity for the relief. Accordingly, the motion is denied. If, however, it later appears that the relief is necessary or that the defendant is delaying a prompt trial of the issues, the plaintiffs may seek relief by appropriate motion.

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Henry Epstein, J.

This is a motion for a temporary injunction in an action by the plaintiffs to reform a written agreement entered into between the parties and for an accounting. In connection therewith the action seeks to compel the retransfer of stock, a lease and security thereunder and for other relief.

This motion seeks to enjoin the defendants, pendente lite, from transferring that stock, from in any way disposing of the assets of the defendant corporation, from transferring or disposing of that lease and security, from disposing of certain promissory notes, from making any alteration or improvements in the. premises held by the defendant corporation and from electing new officers or directors of the defendant corporation.

[199]*199The action herein was commenced by the filing of a lis pendens and service of a summons and complaint in January of this year.

To obtain a temporary injunction, the plaintiffs must show irreparable injury suffered or reasonably to be expected. In order to receive this drastic relief the plaintiffs must show that an act is being done or threatened and imminent which is destructive of plaintiffs’ rights or cause material injury, as opposed to mere fanciful theoretical or possible injury. Not every apprehension of injury will move the court to exercise its discretionary power in the absence of irreparable injury or the threat thereof. This prerequisite the plaintiffs have failed to show. In addition the plaintiffs could have asked for this remedy at any time since January. Having failed to do so, they should not now be heard, particularly where no proof is offered of the necessity for the relief. Accordingly, the motion is denied. If, however, it later appears that the relief is necessary or that the defendant is delaying a prompt trial of the issues, the plaintiffs may seek relief by appropriate motion.

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Bluebook (online)

17 Misc. 2d 198, 191 N.Y.S.2d 66, 1959 N.Y. Misc. LEXIS 3600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-rossi-nysupct-1959.