Opinion
March 21, 1988
Appeal from the Supreme Court, Richmond County (Leone, J.).
Ordered that the appeal from the order dated April 22, 1986, is dismissed, as that order was superseded by the order dated May 21, 1987, made upon renewal and reargument; and it is further,
Ordered that the order dated May 21, 1987 is reversed insofar as appealed from, the order dated April 22, 1986 is vacated and the plaintiffs' application for a preliminary injunction is denied; and it is further,
Ordered that the defendants are awarded one bill of costs.
As we have previously noted, "[t]he law is well settled that to prevail on an application for preliminary injunctive relief, the moving party must demonstrate `"(1) a likelihood of ultimate success on the merits; (2) irreparable injury absent the granting of the preliminary injunction; and (3) that a balancing of equities favors [the movant's] position"' (Barone v. Frie, 99 A.D.2d 129, 132, quoting from Gambar Enters. v. Kelly Servs., 69 A.D.2d 297, 306). Preliminary injunctive relief is a drastic remedy which will not be granted `unless a clear right thereto is established under the law and the undisputed facts upon the moving papers, and the burden of showing an undisputed right rests upon the movant' (First Natl. Bank v. Highland Hardwoods, 98 A.D.2d 924, 926; accord, Buegler v. Walsh, 111 A.D.2d 206)" (County of Orange v. Lockey, 111 A.D.2d 896, 897).
We find that the Supreme Court, Richmond County, abused its discretion in granting the plaintiffs' application. "Given the conflicting affidavits submitted on the motion we are unable to conclude that there is a likelihood that the [plaintiffs] will succeed on the merits" (County of Orange v. Lockey, supra, at 897-898).
In light of our determination, we need not reach the defendants' other contentions. Lawrence, J.P., Eiber, Harwood and Balletta, JJ., concur.