National Education Products, Inc. v. Educational Reading Aids Corp.

34 A.D.2d 769, 311 N.Y.S.2d 513, 1970 N.Y. App. Div. LEXIS 4810

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 19, 1970
• Status: Published

Opinion

Order entered January 20, 1970, granting stay of proceedings pending arbitration and granting preliminary injunction in favor of plaintiff, unanimously modified on the law and the facts to the extent that the (first decretal paragraph granting plaintiff’s motion for preliminary injunction is deleted, and otherwise affirmed, with $30 costs and disbursements to defendants-appellants-respondents. The arbitration clause in the prime contract has already been invoked. In addition to that protection, plaintiff has not shown irreparable injury suffered or reasonably to be expected and it appears it has an adequate remedy at law for damages. On this submission -plaintiff has not shown clear proof of a breach of contract or demonstrated by clear and convincing evidence the likelihood of prevailing. Defendant on the other hand at least has developed a plausible thesis of possible grounds for invoking paragraph nine of the main contract. Moreover, upon all of the questions in the case there are claims and charges each against the other which make it impossible to forecast the outcome of the litigation. Lacking the essential elements entitling plaintiff to the extraordinary remedy of preliminary injunction, the motion for the same must be denied. {Kakalios v. Mesemch, 259 App. Div. 112; Morrin v. Structural Steel Bd. of Trade, 231 App. Div. 673; Elk St. Market Corp. v. Rothenberg, 233 App. Div. 243.) Other questions raised are not reached. Concur — McGivern, J. P., Markewich, Steuer and Bastow, JJ.