Summary
denying a preliminary injunction where the plaintiffs' attorney's repeated allegations that plaintiff would be forced to go out of business was not supported by financial statements or other evidence: "These bare, conclusory allegations were insufficient to satisfy the plaintiff's burden of demonstrating irreparable injury."
Summary of this case from Gumberg Assocs. v. KeybankOpinion
April 27, 1987
Appeal from the Supreme Court, Kings County (Bernstein, J.).
Ordered that the order is affirmed, with costs.
In June 1985, the parties entered into a contract whereby the plaintiff was to perform certain construction and alteration work for the defendant. Various disputes arose, and the plaintiff never performed any of the work. By summons and complaint dated August 14, 1986, the plaintiff commenced this action to declare the defendant in default of the contract. By letter dated November 14, 1986, the defendant notified the plaintiff that the defendant's Board of Review was scheduled to hold a default hearing with reference to the plaintiff's failure to perform under the contract. The plaintiff moved for a preliminary injunction to enjoin the defendant from holding the default hearing until after the determination of the declaratory judgment action. The plaintiff appeals from the order denying its motion for a preliminary injunction. We affirm.
It is well settled that in order to obtain a preliminary injunction, a party must demonstrate (1) the likelihood of ultimate success on the merits, (2) irreparable injury absent the granting of the preliminary injunction, and (3) that the equities are balanced in his favor (see, McLaughlin, Piven, Vogel v Nolan Co., 114 A.D.2d 165, 172, lv denied 67 N.Y.2d 606). In an attempt to demonstrate that it would suffer irreparable injury if the preliminary injunction were not granted, the plaintiff submitted an affidavit by its construction manager which stated, inter alia, that the plaintiff does 90% of its work for municipal agencies. An affirmation submitted by the plaintiff's attorney repeated this contention and alleged that the plaintiff would be forced to go out of business if it were declared in default by the defendant. No financial statements or other evidence were submitted to substantiate these claims. These bare, conclusory allegations were insufficient to satisfy the plaintiff's burden of demonstrating irreparable injury (see, L J Roost v Department of Consumer Affairs, 128 A.D.2d 677; Kaufman v International Business Machs. Corp., 97 A.D.2d 925, 926, affd 61 N.Y.2d 930). Moreover, injunctive relief will not lie where there is an adequate remedy at law in a proceeding under CPLR article 78 (see, Kane v Walsh, 295 N.Y. 198, 206; Grogan v Saint Bonaventure Univ., 91 A.D.2d 855; Nassau Roofing Sheet Metal Co. v Facilities Dev. Corp., 70 A.D.2d 1021, appeal dismissed 48 N.Y.2d 654).
Finally, the plaintiff has failed to demonstrate that the balance of the equities is in its favor. Lawrence, J.P., Weinstein, Kunzeman and Kooper, JJ., concur.