Shelborne Beach Club, Inc. v. Hellman

49 A.D.2d 933, 372 N.Y.S.2d 227, 1975 N.Y. App. Div. LEXIS 11208

Opinion

On the court’s own motion, its decisions dated September 11, 1975 and October 15, 1975, and the orders made thereon, are withdrawn and vacated and the substituted decision hereinbelow set forth is rendered. Rabin, Acting P. J., Latham, Cohalan, Margett and Christ, JJ., concur. In an action for a permanent injunction to restrain defendants from selling certain merchandise in violation of the provisions of a lease, defendants appeal from an order of the Supreme Court, Queens County, dated May 30, 1975, which, inter alia, granted plaintiff’s motion for a preliminary injunction. Order reversed and motion denied, with a direction that this case be tried immediately, with $20 costs and disbursements to abide the event of such trial. On a motion for a preliminary injunction, the movant must prove three things: (1) the likelihood of its ultimate success on the merits; (2) irreparable injury to it absent the granting of the preliminary injunction; and (3) a balancing of the equities (Albini v Solork Assoc., 37 AD2d 835). It was error for Special Term to grant the preliminary injunction because plaintiff failed to prove irreparable injury absent the granting of the requested relief. Rabin, Acting P. J., Cohalan and Margett, JJ., concur; Latham and Christ, JJ., dissent and vote to affirm, without opinion.