Wm. Rosen Monuments, Inc. v. Phil Madonick Monuments, Inc.

62 A.D.2d 1053, 404 N.Y.S.2d 133, 1978 N.Y. App. Div. LEXIS 11140

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 24, 1978
• Status: Published

Opinion

In an action, inter alia, to recover damages for libel, defendants appeal from an order of the Supreme Court, Kings County, dated March 17, 1977, which granted plaintiff’s motion for a preliminary injunction enjoining defendants from displaying an allegedly tortious sign in their shop window and from making certain allegedly tortious statements regarding plaintiff’s business establishment. Order reversed, with $50 costs and disbursements, and motion denied. Plaintiff alleges a prima facie tort as the underlying claim in support of the preliminary injunction. However, the affidavits of the opposing parties present conflicting views concerning the key question of evil motive or intent to do harm, proof of which is requisite to the ultimate success of plaintiff’s action (see Beardsley v Kilmer, 236 NY 80). That issue may not be resolved without a trial at which each side will be able to present evidence. A preliminary injunction is a drastic remedy and should be granted with caution, and only when required by urgent situations or grave necessity, and then upon the clearest evidence (Russian Church of Our Lady of Kazan v Dunkel, 34 AD2d 799). Hopkins, J. P., Martuscello, Titone and Rabin, JJ., concur.