Opinion
22157/01.
Decided June 25, 2008.
Attorneys for plaintiff: Brian J. Isaac, Esq. and Alan M. Shapey, Esq.
Attorneys for defendant: Susan Weihs Darlington, Esq. and Peter Samberg, Esq.
The motion by plaintiff by order to show cause for an order pursuant to C.P.L.R. § 6301, precluding defendant from transferring, dissipating, encumbering or mortgaging any of the properties it owns except in the ordinary course of business transactions, based upon the jury verdict of over $12.67 million and the available insurance of only $1-3 million, requiring defendant to secure court approval of any sale, encumbrance or transaction of any properties owned by defendant or to prevent the dissipation of assets, is denied only to the extent that defendant is directed to post a bond in excess of the insurance policy to cover a total of $6 million.
This matter involved the lead poisoning of the infant plaintiff. A jury awarded the plaintiff a total of $12,720,000 in damages. Plaintiff asserts that defendant's available insurance is only between $1million and $3 million. As a result, plaintiff seeks a preliminary injunction to preclude the defendant from selling or encumbering any of its properties thereby dissipating the funds from which the plaintiff can seek recovery. A temporary restraining order (TRO) was granted by this court pending a hearing on the motion.
Defendant opposes the motion on the ground that plaintiff has not established his entitlement to injunctive relief. Defendant asserts that it will appeal any judgment entered in this case including the award of damages which defendant argues is excessive for cases of this nature.
The parties appeared for oral argument before this court on June 12, 2008. At the oral argument, defendant expressed a willingness to post a bond so that the TRO could be lifted. Plaintiff agreed to the posting of a bond in the amount of the judgment in excess of the insurance coverage. However, defendant argued that it would be unable to post a bond as long as the TRO was in effect. This court granted an adjournment in order for the parties to reach a resolution with respect to the bond. However, in a letter to this court dated June 17, 2008, counsel for the plaintiff informed the court that defendant's attorneys failed to contact him with respect to any efforts they may have made to attempt to obtain a bond.
C.P.L.R. § 6301 states that, "A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do . . . an act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual . . ." Courts have held that, "The decision to grant or deny such a request lies within the sound discretion of the trial court." After Six, Inc. v. 201 East 66th Street Assoc. , 87 AD2d 153 (1st Dept. 1982). A party who seeks to obtain a preliminary injunction must demonstrate, "(1) the likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the injunction is not issued; and (3) a balance of the equities in the movant's favor . . ." (citations omitted). Housing Works, Inc. v. City of New York , 255 AD2d 209 (1st Dept. 1998).
This court finds that plaintiff has failed to demonstrate the likelihood of success on the merits. Specifically, plaintiff has failed to show that he will ultimately be successful in sustaining the jury's award of over $12 million dollars in light of the fact that there are no cases of a similar nature where a sustainable verdict came close to the verdict reached by the jury in this case. Accordingly, the motion for a preliminary injunction is denied.
However, since defendant demonstrated a willingness to post a bond in order for the TRO to be lifted, this court hereby directs the defendant to post a bond in excess of the insurance policy to cover a total of $6 million. The TRO is hereby lifted only on the condition that said bond be posted.
This constitutes the decision and order of the court.