Opinion
March 30, 1966
Order, entered March 24, 1966, unanimously modified, without costs or disbursements, on the law, the facts and in the exercise of discretion, to vacate all decretal provisions thereof, excepting the final paragraph, on condition, however, that, on or before March 31, 1966, the defendants serve and file an undertaking in the amount of $10,000, conditioned that, if the plaintiff shall recover judgment against the defendants for a permanent injunction in conformity with the allegations of its complaint, then, the defendants shall pay to the plaintiff any loss sustained by reason of the vacating of the injunctive provisions of the order aforesaid. (See CPLR 6314.) The preliminary injunction which restrained defendants, inter alia, from submitting and leaving in force any proposal or bid for the removal and disposal of obsolete components of the nuclear reactor located at Shippingport, Pennsylvania, has the effect of finally disposing of the action. It is well settled that an injunction pendente lite will not ordinarily be granted where the effect thereof is to grant the plaintiff the same relief which may ultimately be obtained after a trial on the merits. Unless the plaintiff clearly demonstrates the necessity and urgency for relief in advance of a trial, including the sustaining in the meantime of irreparable injury, the injunctive remedy will be withheld pending the trial. (See 7 Weinstein-Korn-Miller, par. 6301, 17; Tripp, A Guide to Motion Practice [rev. ed.], § 123, p. 329, id. 1955-62 Supp., p. 234.) Here there is no showing that the plaintiff will be substantially prejudiced if the defendants are permitted to bid on the particular work. On consent, the parties may have an early trial, and Special Term has provided for the placing of the matter on the appropriate Trial Term Calendar for April 7, 1966. (See New York and Bronx Counties Supreme Court Rules, part 1, rule VIII, subd. 1, par. [e].)
Concur — Botein, P.J., Rabin, Stevens, Eager and Steuer, JJ.