Opinion
July 6, 1987
Appeal from the Supreme Court, Nassau County (Christ, J.).
Ordered that the order, as amended, is reversed insofar as appealed from, with one bill of costs, and that branch of the plaintiffs' motion which was for a preliminary injunction is denied.
It is well settled that a party seeking a preliminary injunction has the burden of establishing "`(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'" (see, Zurich Depository Corp. v. Gilenson, 121 A.D.2d 443, 444). Furthermore, a preliminary injunction enforcing a restrictive covenant against a former employee will only be granted where "`the right is plain from the undisputed facts. If the right depends upon an issue which can only be decided upon a trial, the injunction cannot be granted'" (Family Affair Haircutters v Detling, 110 A.D.2d 745, 747, quoting from Jaymar's, Inc. v Schwartz, 37 Misc.2d 314, 316).
The record before us establishes that the plaintiff has failed to make the requisite evidentiary showing to entitle it to the remedy of a preliminary injunction. Thompson, J.P., Bracken, Brown and Eiber, JJ., concur.