Opinion
2013-05-3
RG & RH, INC. and LG & WH, Inc., Plaintiffs–Respondents, v. SCHMIDT'S AUTO BODY & GLASS, INC., Defendant–Appellant. Schmidt's Auto Body & Glass, Inc., Third–Party Plaintiff–Appellant, v. Russell Hanny, Richard Greenawalt, Auto Collision & Glass, Inc., Richard R. Greenawalt, and Juanita Greenawalt–Slobe, Third–Party Defendants–Respondents.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered January 4, 2012. The order denied defendant-third-party plaintiff's motion for an injunction during the pendency of the underlying action. Mosey Persico, LLP, Buffalo (Jennifer C. Persico of Counsel), for Defendant–Appellant and Third–Party Plaintiff–Appellant. Magavern Magavern Grimm LLP, Niagara Falls (Sean J. Mackenzie of Counsel), for Plaintiffs–Respondents and Third–Party Defendants–Respondents Russell Hanny and Richard Greenawalt.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered January 4, 2012. The order denied defendant-third-party plaintiff's motion for an injunction during the pendency of the underlying action.
Mosey Persico, LLP, Buffalo (Jennifer C. Persico of Counsel), for Defendant–Appellant and Third–Party Plaintiff–Appellant. Magavern Magavern Grimm LLP, Niagara Falls (Sean J. Mackenzie of Counsel), for Plaintiffs–Respondents and Third–Party Defendants–Respondents Russell Hanny and Richard Greenawalt.
Harris Beach PLLC, Niagara Falls (Patrick J. Berrigan of Counsel), for Third–Party Defendants–Respondents Auto Collision & Glass, Inc., Richard R. Greenawalt and Juanita Greenawalt–Slobe.
MEMORANDUM:
Defendant-third-party plaintiff (defendant) appeals from an order denying its motion for a preliminary injunction prohibiting third-party defendants Auto Collision & Glass, Inc., Richard R. Greenawalt and Juanita Greenawalt–Slobe from engaging in any business activity that is similar to or in direct competition with defendant's business activity within a five-mile radius of 2200 Military Road in Niagara Falls during the pendency of this action. “Preliminary injunctive relief is a drastic remedy [that] is not routinely granted” ( Marietta Corp. v. Fairhurst, 301 A.D.2d 734, 736, 754 N.Y.S.2d 62;see Peterson v. Corbin, 275 A.D.2d 35, 37, 713 N.Y.S.2d 361,appeal dismissed95 N.Y.2d 919, 719 N.Y.S.2d 646, 742 N.E.2d 121). It is well settled that a party seeking a preliminary injunction “must establish, by clear and convincing evidence ..., three separate elements: ‘(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’ ” ( Destiny USA Holdings, LLC v. Citigroup Global Mkts. Realty Corp., 69 A.D.3d 212, 216, 889 N.Y.S.2d 793, quoting Doe v. Axelrod, 73 N.Y.2d 748, 750, 536 N.Y.S.2d 44, 532 N.E.2d 1272;see J.A. Preston Corp. v. Fabrication Enters., 68 N.Y.2d 397, 406, 509 N.Y.S.2d 520, 502 N.E.2d 197). Moreover, “[a] motion for a preliminary injunction is addressed to the sound discretion of the trial court[,] and the decision of the trial court on such a motion will not be disturbed on appeal, unless there is a showing of an abuse of discretion” ( Destiny USA Holdings, LLC, 69 A.D.3d at 216, 889 N.Y.S.2d 793 [internal quotation marks omitted]; see Axelrod, 73 N.Y.2d at 750, 536 N.Y.S.2d 44, 532 N.E.2d 1272). Here, we conclude that the court did not abuse its discretion in denying defendant's motion for a preliminary injunction ( see generally Marcone APW, LLC v. Servall Co., 85 A.D.3d 1693, 1695, 925 N.Y.S.2d 752;Eastman Kodak Co. v. Carmosino, 77 A.D.3d 1434, 1435, 909 N.Y.S.2d 247).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.