Opinion
Index # 654301/12
11-19-2014
PURSUIT CAPITAL MANAGEMENT, LLC, Petitioner, v. CLARIDGE ASSOCIATES, LLC, JAMISCOTT LLC, LESLIE SCHNEIDER and LILLIAN SCHNEIDER, and LEONARD SCHNEIDER, Respondents.
Counsel for Petitioner Harris, O'Brien, St. Laurent & Chaudhry 111 Broadway, Suite 1502 New York, NY 10006 Counsel for Non-Party - Northeast Capital Management Cane & Associates LLP 200 Park Avenue New York, New York 10166
Decision & Order
Counsel for Petitioner
Harris, O'Brien, St. Laurent & Chaudhry
111 Broadway, Suite 1502
New York, NY 10006
Counsel for Non-Party - Northeast Capital Management
Cane & Associates LLP
200 Park Avenue
New York, New York 10166
Papers considered in review of this motion seeking to reargue this Court ex parte Order granting a temporary restraining Order:
| Papers | Numbered |
| Order to Show Cause, Petition, and Exhibits Affirmation in Opposition with Exhibits, and Memo of Law | 1-15 |
| Affidavits in Opposition with Exhibits, and Memorandum of Law in Opposition | 17-27 |
Defendants collectively, seek, inter alia, an Order pursuant to CPLR 6301 granting injunctive relief against non-party, Northeast Capital Management LLC (Northeast).
FACTUAL BACKGROUND
The facts of this case have been recited in this Court's decision dated, June 25, 2014, and will not be repeated in detail here. All of the parties and non-parties are assumed to have knowledge of the facts and procedural history of this matter. This Court has denied plaintiff's application to implicate Northeast as a necessary party to the captioned arbitration and this action three times. Defendants' current application was submitted for signature without notice to Northeast.
The papers presented in opposition, include affidavits from people with knowledge of Northeast's position and litigation posture relative to the captioned action. Virtually all of defendants' allegations that suggest Northeast somehow violated this Court's June 25, 2014 decision, by transferring funds prior to the date of the decision, have been refuted and/or denied outright as fabrications.
DISCUSSION
CPLR 6301 sets forth the grounds for preliminary injunction and temporary restraining order:
A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff.
A temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant' is restrained before the
hearing can be had.
A party moving for a preliminary injunction must demonstrate by clear and convincing evidence a right to the remedy sought (W.T. Grant Co. v Srogi, 52 NY2d 496 [1981]). Furthermore, that party must establish, (1) a likelihood of success on the merits of the underlying claim; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of the equities tipping in its favor (see Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]; Olympic Tower Condominium v Cocoziello, 306 AD2d 159 [1st Dept 2003], citing, Doe v Axelrod, 73 NY2d 748, 750 [1988]). This Court finds that defendants have failed to satisfy the three-pronged test for the granting of a preliminary injunction, nor have they met their burden of proof. Notably, defendants have been unable to show that the irreparable harm is 'imminent, not remote or speculative' (citations omitted). Moreover, '[e]conomic loss, which is compensable by money damages, does not constitute irreparable harm' (Olympic Tower Condominium, supra).
The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court (Family-Friendly Media, Inc. v Recorder Television Network, 74 AD3d 738 [2nc Dept 2010]).
"[A] mandatory preliminary injunction (one mandating specific conduct), by which the movant would receive some form of the ultimate relief sought as a final judgment, is granted only in 'unusual' situations, 'where the granting of the relief is essential to maintain the status guo pending trial of the action'" (citations omitted) (Jones v Park Front Apartments, LLC, 73 AD3d 612 [1st Dept 2010]). Defendants have not accomplished any of the foregoing with these papers. "[W]here conflicting affidavits raise sharp issues of fact," injunctive relief should not be granted Lehey v Goldburt, 90 AD3d 410 (1st Dept 2011).
Defendants seek additional relief in it's application. This Court has considered the merits of the arguments made in support of holding Northeastern in contempt, and find them to be unpersuasive. The branch of defendants' motion seeking to amend the cation to the following is granted, conseguently the caption shall read as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PURSUIT CAPITAL MANAGEMENT, LLC, Plaintiff,
-against- CLARIDGE ASSOCIATES, LLC, JAMISCOTT LLC, LESLIE SCHNEIDER and LILLIAN SCHNEIDER, individually and as EXECUTOR OF THE ESTATE OF LEONARD SCHNEIDER, Defendants.
Accordingly, it is
ORDERED that, the temporary restraining Order signed by this Court on October 29, 2014, is vacated; and it is further
ORDERED that, with the exception of the caption change the balance of defendants' application is also denied. Dated: November 19, 2014
ENTER:
/s/_________
Hon. Joan M. Kenney
J.S.C.