In order to satisfy the burden of demonstrating a likelihood of success on the merits, the movant is required to "demonstrate a clear right to relief which is plain from the undisputed facts'" ( Blueberries Gourmet v Aris Realty Corp., 255 AD2d 348, 349-350, quoting Family Affair Haircutters v Detling, 110 AD2d 745, 747; see also Mosseri v Fried, 289 AD2d 545, 546). Where the facts of the case are sharply disputed, the movant cannot demonstrate a clear right to injunctive relief (see Eklund v Pinkey , 31 AD3d 908, 909; Digestive LiverDisease, P.C. v Patel , 18 AD3d 423, 423; Mosseri, 289 AD2d at 546).
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion which was for a preliminary injunction enjoining the defendant from obstructing the plaintiff's use of a parking lot located on property owned by the defendant is denied. A party establishes its entitlement to a preliminary injunction by demonstrating (1) a probability of success on the merits, (2) danger of irreparable harm in the absence of an injunction, and (3) a balance of the equities in its favor ( see CPLR 6301; Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 862; Doe v. Axelrod, 73 N.Y.2d 748, 750; Grant Co. v. Srogi, 52 N.Y.2d 496, 517; Mosseri v. Fried, 289 A.D.2d 545; Blueberries Gourmet v. Aris Realty Corp., 255 A.D.2d 348, 349). The Supreme Court erred in granting that branch of the plaintiff's motion which was for a preliminary injunction.
In any event, the plaintiff failed to make the requisite showing for a preliminary injunction (see Doe v. Axelrod, 73 N.Y.2d 748, 750; Mosseri v. Fried, 289 A.D.2d 545). Not only were the facts sharply disputed in this case, but the plaintiff failed to show that it was likely to succeed on the merits of its claims alleging trespass and nuisance (see Copart Indus. v. Consolidated Edison Co. of N.Y., 41 N.Y.2d 564, 570; Kossoff v. Rathgeb-Walsh, 3 N.Y.2d 583, 589-590; Gollomp v. Dubbs, 283 A.D.2d 550).
As the Supreme Court correctly noted in its well-reasoned decision, there is no likelihood that the petitioners will succeed on the merits of their underlying petition. Thus, the Supreme Court providently denied the petitioners' motion for a preliminary injunction (see CPLR 6311; Doe v. Axelrod, 73 N.Y.2d 748, 750; Grant Co. v. Srogi, 52 N.Y.2d 496, 517; Sheffield Towers Rehabilitation Health Care Ctr. v. Novello, 293 A.D.2d 182 [2d Dept, Apr. 22, 2002]; Mosseri v. Fried, 289 A.D.2d 545). FLORIO, J.P., S. MILLER, TOWNES and COZIER, JJ., concur.
To establish a likelihood of success on the merits, Petitioners "[a]re required to 'demonstrate a clear right to relief which is "plain from the undisputed facts.'" Mosseri v. Fried, 289 A.D.2d 545, 545-46 (2d Dep't 2001). Petitioners' failure to satisfy this requirement requires the denial of Petitioners' request for a preliminary injunction.
The burden of showing that an undisputed right exists rests upon the movant (Doe v. Poe, 189 A.D.2d 132, 595 N.Y.S.2d 503 [2d Dept 1993] ). When there is no likelihood that a movant will succeed on the merits of its underlying petition, it is provident for the court to deny the movant's motion for a preliminary injunction (see CPLR 6311 ; Doe v. Axelrod, 73 N.Y.2d 748, 536 N.Y.S.2d 44 [1988];Sheffield Towers Rehabilitation & Health Care Ctr. v. Novello, 293 A.D.2d 182, 741 N.Y.S.2d 103 [2d Dept 2002] ; Mosseri v. Fried, 289 A.D.2d 545, 735 N.Y.S.2d 794 [2d Dept 2001] ). In this matter, the plaintiff alleges that plaintiff and defendant FWEVENTS CORP. entered into a consulting agreement for certain services to be provided by the plaintiff in exchange for the sum of $50,000.00, which is evidenced by a Promissory Note in favor of plaintiff.
that a preliminary injunction, pursuant to CPLR ยง 6301, "may be granted . . . when the party seeking such relief demonstrates: (1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in the moving party's favor (Grant Co. v. Srogi, 52 NY2d 496, 517)." See Nobu Next Door, LLC v. Fine Arts Housing, Inc., 4 NY3d 839 (2005); Aetna Ins. Co. v. Capasso, 75 NY2d 860, 862 (1990); Lattingtown Harbor Property Owners Ass'n. Inc. v. Agostino, ___ AD3d ___, 2006 NY Slip Op 08219 (2nd Dept Nov. 14, 2006); McNeil v. Mohammed, 32 AD3d 829 (2nd Dept 2006); Coinmach Corp. v. Alley Pond Owners Corp., 25 AD3d 642 (2nd Dept 2006); Ying Fung Moy v. Hohi Umeki, 10 AD3d 604 (2nd Dept 2004); Milbrandt Co., Inc. v. Griffin, 1 AD3d 327 (2nd Dept 2003); JDOC Const. LLC v. Balabanow, 306 AD2d 318 (2nd Dept 2003); Seven Acre Wood Street Associates, Inc. v. Town of Bedford, 302 AD2d 511 (2nd Dept 2003); Fried v. Mosseri, 289 AD2d 545 (2nd Dept 2001).
Unless the movant demonstrates a clear right to injunctive relief, such a remedy is inappropriate. See Mosseri v Fried, 289 AD2d 545, 546 (2d Dept 2001).
The decision to grant a preliminary injunction is a matter committed to the sound discretion of the trial court. Doe v. Axelrod, 73 NY2d 748, 758 (1988); and Mosseri v. Fried, 289 AD2d 545 (2nd Dept. 2001). To prevail on a motion for a preliminary injunction, the movant must show (1) a probability of success on the merits; (2) danger of irreparable injury in the absence of injunctive relief; and (3) a balancing of the equities in the movant's favor.
It is unclear, however, whether the alleged payments were mortgage payments, rent, repayment of a debt or payments made for some other reason. On this motion, petitioner was required to demonstrate a clear right to relief which is plain from the undisputed facts ( Mosseri v. Fried, 289 AD2d 545). The evidence submitted by petitioner does not meet this test.