Summary
granting of preliminary injunction was abuse of discretion where the plaintiffs failed to prove likelihood of success, irreparable injury, or that equities weighed in their favor
Summary of this case from Am. Water Restoration, Inc. v. AKF Inc.Opinion
November 15, 1989
Appeal from the Supreme Court, Monroe County, Siracuse, J.
Present — Dillon, P.J., Green, Pine, Balio and Davis, JJ.
Order reversed on the law with costs and motion denied. Memorandum: It was an abuse of discretion as a matter of law to grant plaintiffs' application for a preliminary injunction. Plaintiffs failed to meet their burden of demonstrating, through the tender of evidentiary proof (see, Brodsky v City of Rochester, 142 A.D.2d 1002, 1003; Armbruster v Gipp, 103 A.D.2d 1014), the likelihood of success on the merits, irreparable injury absent the granting of the injunction, and that the equities weigh in their favor (see, Preston Corp. v Fabrication Enters., 68 N.Y.2d 397, 406; Grant Co. v Srogi, 52 N.Y.2d 496, 517; Walter Karl, Inc. v Wood, 137 A.D.2d 22, 26; Niagara Recycling v Town of Niagara, 83 A.D.2d 316, 324).
A party moving for a preliminary injunction need not establish a certainty of success on the merits (see, Parkmed Co. v Pro-Life Counselling, 91 A.D.2d 551, 553; Tucker v Toia, 54 A.D.2d 322, 326), but when the facts necessary to establish the cause of action are, as here, in sharp dispute, a preliminary injunction should not issue (see, Armbruster v Gipp, supra; First Natl. Bank v Highland Hardwoods, 98 A.D.2d 924, 926).
Moreover, plaintiffs offered only conclusory allegations in support of their claim that they will suffer irreparable harm if the preliminary injunction is not granted (cf., Kaufman v International Business Machs. Corp., 97 A.D.2d 925, 926, affd 61 N.Y.2d 930). Although the actions seek to impose a constructive trust upon an annuity fund, plaintiffs' claim is essentially one for money damages. Plaintiffs have made no evidentiary showing that, should they prevail in this action, defendant will be unable to satisfy the judgment (cf., Pando v Fernandez, 124 A.D.2d 495, 496).
We further note that Supreme Court erred when it granted a preliminary injunction without requiring plaintiffs to post an undertaking (see, CPLR 6312 [b]; Ziankoski v Simmons, 140 A.D.2d 1007; Walter Karl, Inc. v Wood, supra; Burmax Co. v B S Indus., 135 A.D.2d 599, 601).
All concur, Pine, J., not participating.