Opinion
04-09-2024
BFG 104 LLC, Plaintiff–Respondent, v. GREENWICH BUSINESS CAPITAL, LLC et al., Defendants–Appellants, Danielle Desrosiers, Defendant.
Carter Ledyard & Milburn, LLP, New York (Jacob H. Nemon of counsel), for appellants. Golenbock Eiseman Assor Bell & Peskoe LLP, New York (Elizabeth C. Conway of counsel), for respondent.
Carter Ledyard & Milburn, LLP, New York (Jacob H. Nemon of counsel), for appellants.
Golenbock Eiseman Assor Bell & Peskoe LLP, New York (Elizabeth C. Conway of counsel), for respondent.
Webber, J.P., Moulton, Kennedy, Rodriguez, O’Neill Levy, JJ.
Order, Supreme Court, New York County (Andrea Masley, J.), entered on or about June 21, 2023, which granted plaintiff’s motion for a preliminary injunction, unanimously affirmed, with costs.
[1] Supreme Court providently exercised its discretion in granting plaintiff’s motion for a preliminary injunction (see Gilliland v. Acquafredda Enters., LLC, 92 A.D.3d 19, 24-25, 936 N.Y.S.2d 125 [1st Dept. 2011]). Contrary to defendants’ contention, the motion was not one for mandatory injunctive relief, as no affirmative action was required of them (see Spectrum Stamford, LLC v. 400 Atl. Tit., LLC, 162 A.D.3d 615, 616–617, 81 N.Y.S.3d 5 [1st Dept. 2018]); the injunction enjoined defendants from interfering with or diverting monies that plaintiff was contractually entitled to receive. In any event, plaintiff’s affidavit that it would likely default on its obligations to its lenders and go out of business absent an injunction enjoining defendants from diverting collections to themselves, was sufficient to establish irreparable harm (see Advent Software, Inc. v. SEI Global Servs., Inc., 195 A.D.3d 498, 499, 150 N.Y.S.3d 256 [1st Dept. 2021]; Asprea v. Whitehall Interiors NYC, LLC, 206 A.D.3d 402, 403, 169 N.Y.S.3d 308 [1st Dept. 2022]).
[2] Defendants’ contentions, raised for the first time on appeal, that plaintiff cannot succeed on the merits and that the equities favored defendants, were rendered moot by the court’s subsequent order, which modified the preliminary injunction by clarifying that the injunction applied to merchants listed on schedule A of the 61 purchase and sale agreements and also increased the amount of the undertaking to $500,000. Although the subsequent order was not directly appealed, it was an appealable order made on notice by defendants; thus, no separate appeal was necessary and the subsequent order can be reviewed on appeal from the earlier order (see Schwartz v. Dickstein, 54 A.D.2d 662, 662, 387 N.Y.S.2d 639 [1st Dept. 1976); CPLR 5517[a], [b]).