See also Diehl Sons, Inc. v. International Harvester Co., 426 F. Supp. 110 (E.D.N Y 1976). Plaintiff's claim under the New York statutes suffers a similar defect, although we are willing to assume for purposes of this motion that section 198 of the New York General Business Law is a legislative authorization for issuance of injunctions without regard to the monetary compensability of the injuries alleged: plaintiff must still demonstrate a likelihood of success on the merits, even as a matter of State law. See, e.g., City of Buffalo v. Mangan, 49 A.D.2d 697, 370 N YS.2d 771 (4th Dept. 1975); DeLury v. City of New York, 48 A.D.2d 595, 378 N.Y.S.2d 49 (1st Dept. 1975). The predicate for relief is at least a claim that plaintiff's termination was either not pursuant to contract or understanding between the parties, or was the result of some proscribed conduct on the part of defendant.
"In order to obtain a preliminary injunction, the plaintiff must show by clear and convincing evidence that it is likely to succeed on the merits of the action, that it will suffer irreparable injury absent the injunction, and that the balance of the equities is in its favor ( see, Aetna Ins. Co. v Capasso, 75 NY2d 860; Grant Co. v Srogi, 52 NY2d 496, 517)" ( Key Drug Co. v Luna Park Realty Assocs., 221 AD2d 598, 599). We agree with the court that plaintiff has not met the first requirement because it failed to establish its clear right to the ultimate relief sought ( see, Little India Stores v Singh, 101 AD2d 727, 728; City of Buffalo v Mangan, 49 AD2d 697). "[T]he policy of the law is to favor the free and unobstructed use of realty ( Premium Point Park Assn. v Polar Bar, 306 NY 507) and * * * covenants restricting the use of property will be strictly construed against those seeking to enforce them ( Buffalo Academy of Sacred Heart v Boehm Bros., 267 NY 242)" ( Huggins v Castle Estates, 36 NY2d 427, 430; see, Sunrise Plaza Assocs. v International Summit Equities Corp., 152 AD2d 561, lv denied 75 NY2d 703; Thrun v Stromberg, 136 AD2d 543, 544).
It is well settled that such covenants are disfavored by the law (see, Columbia Ribbon Carbon Mfg. Co. v A-1-A Corp., 42 N.Y.2d 496; Reed, Roberts Assocs. v Strauman, 40 N.Y.2d 303, rearg denied 40 N.Y.2d 918; Comcast Sound Communications v Hoeltke, 174 A.D.2d 1023; Buffalo Imprints v Scinta, 144 A.D.2d 1025; Newco Waste Sys. v Swartzenberg, 125 A.D.2d 1004). A non-competition covenant should not be enforced by a preliminary injunction where, as in this case, there is a sharp dispute concerning the underlying facts (see, Newco Waste Sys. v Swartzenberg, supra, at 1005; Cool Insuring Agency v Rogers, 125 A.D.2d 758, 759, mot to dismiss appeal granted 69 N.Y.2d 1037; Family Affair Haircutters v Detling, 110 A.D.2d 745, 747; Union Kol-Flo Corp. v Basil, 64 A.D.2d 861, 862; see also, City of Buffalo v Mangan, 49 A.D.2d 697). Plaintiff's allegations that defendant Troia, a file clerk, possessed confidential information were conclusory and speculative and were controverted by the specific and factually documented affidavits submitted by defendants.
Thus, a substantial question of potential harm to the public exists. Plaintiff has, therefore, failed to prove his clear right to the ultimate relief sought and the preliminary injunction should have been denied (Camardo v. Board of Educ., 50 A.D.2d 1073; City of Buffalo v. Mangan, 49 A.D.2d 697; Smith v Robilotto, 25 A.D.2d 454). This same question of the patients' welfare leads to the conclusion that the equities have not been shown to be in plaintiff's favor, as is necessary before such relief should be granted (Picotte Realty v. Gallery of Homes, 66 A.D.2d 978; Town of Porter v. Chem-Trol Pollution Servs., 60 A.D.2d 987, 988). Moreover, plaintiff has also failed to demonstrate that irreparable harm will result absent the preliminary injunction.
The pleadings and affidavits underlying this application are rife with questions of fact, including whether trade secrets or confidential matters are involved (Gaynor Co. v Stevens, 61 A.D.2d 775), whether defendants have appropriated any such, and what are the equities between the parties. Except with respect to defendants' implied representations that plaintiff Union Kol-Flo Corporation has abandoned the field of research products involved herein, plaintiffs have shown no clear right to a permanent injunction, and so should not, preliminarily, be granted the relief which they may not be able to attain at the conclusion of the lawsuit (Brand v Bartlett, 52 A.D.2d 272, 275; City of Buffalo v Mangan, 49 A.D.2d 697; Damon Creations v James Talcott, Inc., 39 A.D.2d 677; Albini v Solork Assoc., 37 A.D.2d 835; Rohauer v Killiam, 37 A.D.2d 547; Barricini, Inc. v Barricini Shoes, 1 A.D.2d 905).
This relief "should be awarded sparingly, and only where the party seeking it has met its burden of providing both the clear right to the ultimate relief sought and the urgent necessity of preventing irreparable harm." City of Buffalo v Mangan, 49 A.D.2d 697, 697 (4th Dept 1975).
Lastly, inasmuch as petitioners have been and continue to be subject to an improperly enacted law that is void ab initio, as well as there being a violation of New York State constitutional principles, the irreparable harm suffered is patent and therefore, an injuction is warranted. See Buffalo v. Mangan, 49 A.D.2d 697 (4th Dept 1975); Tucker v. Toia, 54 A.D.2d 322 4th Dept 1976). As stated previously, there can be no doubt that every person in this State wishes, wants, and prays that this era of COVID ends soon and they will surely do their part to see that is accomplished.
Lastly, inasmuch as petitioners have been and continue to be subject to an improperly enacted law that is void ab initio , as well as there being a violation of New York State constitutional principles, the irreparable harm suffered is patent and therefore, an injunction is warranted. See Buffalo v. Mangan , 49 A.D.2d 697, 370 N.Y.S.2d 771 (4th Dept. 1975) ; Tucker v. Toia , 54 A.D.2d 322, 388 N.Y.S.2d 475 (4th Dept. 1976). As stated previously, there can be no doubt that every person in this State wishes, wants, and prays that this era of COVID ends soon and they will surely do their part to see that is accomplished.
In sum, Plaintiffs are not awarded a preliminary injunction. See e.g.City of Buffalo v. Mangan , 49 AD2d 697 (4th Dept 1975) (affirming denial of preliminary injunction). Defendant's Cross
Standard of Review It is well settled that injunctive relief is a "drastic remedy" that "should be awarded sparingly, and only where the party seeking it has met its burden of proving both the clear right to the ultimate relief sought, and the urgent necessity of preventing irreparable harm" ( Buffalo v. Mangan , 49 A.D.2d 697, 370 N.Y.S.2d 771 [4th Dept. 1975] ). However, where "violation of important principles contained in the New York Constitution" is alleged, "[t]his is precisely the situation in which a preliminary injunction should be granted" ( Tucker v. Toia , 54 A.D.2d 322, 326, 388 N.Y.S.2d 475 [4th Dept. 1976] ).