Opinion
2013-04-17
In the Matter of Thomas C. RICE, deceased. (Matter No. 1) Gloria A. Goodwin, etc., appellant, v. Thomas L. Rice, et al., respondents. (Matter No. 2).
Jeffrey Levitt, Massapequa, N.Y., for appellant. Minerva & D'Agostino, P.C., Valley Stream, N.Y. (Dominick M. Minerva of counsel), for respondents.
Jeffrey Levitt, Massapequa, N.Y., for appellant. Minerva & D'Agostino, P.C., Valley Stream, N.Y. (Dominick M. Minerva of counsel), for respondents.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and SYLVIA HINDS–RADIX, JJ.
In a probate proceeding and a related action, inter alia, to recover damages for breach of contract which was transferred to the Surrogate's Court, Nassau County, the plaintiff appeals, as limited by her brief, from so much of an order of the Surrogate's Court, Nassau County (McCarty III, S.), dated September 13, 2011, as, upon granting that branch of her motion which was for leave to renew her prior motion for summary judgment on the first cause of action, adhered to an original determination in an order dated September 16, 2009, denying that motion, and denied those branches of her motion which were for summary judgment on the fifth cause of action and to preliminarily enjoin the defendants from, inter alia, selling certain real property.
ORDERED that the order dated September 13, 2011, is affirmed insofar as appealed from, with costs.
On a prior appeal in Matter No. 2, this Court, inter alia, affirmed the Supreme Court's order denying the plaintiff's motion for summary judgment on the first cause of action, which sought to recover damages for breach of contract and was asserted against the defendant Thomas L. Rice (hereinafter the individual defendant) ( see Goodwin v. Rice, 79 A.D.3d 699, 913 N.Y.S.2d 692). We determined that, in opposition to the plaintiff's prima facie showing of entitlement to judgment as a matter of law, the defendants “raised triable issues of fact as to whether the individual defendant breached the provision in a December 1986 general partnership agreement setting forth a formula to calculate the price for which he could purchase a 75% share of the partnership of the decedent Thomas C. Rice (hereinafter the decedent) or whether, in a January 2002 agreement, the decedent intended to waive his right to receive such purchase price from the individual defendant” ( id. at 699, 913 N.Y.S.2d 692). We also affirmed so much of the Supreme Court's order as granted the defendants' cross motion pursuant to CPLR 325(e) to transfer the matter to the Surrogate's Court, Nassau County ( see id. at 699–700, 913 N.Y.S.2d 692).
The plaintiff moved in the Surrogate's Court for leave to renew her prior motion for summary judgment on the first cause of action, for summary judgment on the fifth cause of action, and to preliminary enjoin the defendants from, inter alia, selling certain real property.
Contrary to the plaintiff's contention, upon renewal, the Surrogate's Court properly adhered to the prior determination denying her motion for summary judgment on the first cause of action. While the plaintiff established her prima facie entitlement to judgment as a matter of law on the first cause of action, in opposition, the defendants raised a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718), notwithstanding the new evidence submitted by the plaintiff in support of that branch of her motion which was for leave to renew.
The Surrogate's Court also properly denied that branch of the plaintiff's motion which was for summary judgment on the fifth cause of action asserted against the defendant Tom Rice Buick–Pontiac–GMC Truck, Inc. (hereinafter the corporate defendant), which sought repayment of a loan allegedly made by the decedent to the corporate defendant. The plaintiff's submissions in support of this branch of her motion, including, among other things, a handwritten, unsigned, undated note, were insufficient to demonstrate the amount of the alleged loan or any of its material terms. Since the plaintiff failed to meet her prima facie burden of establishing her entitlement to judgment as a matter of law, we need not review the sufficiency of the defendants' opposition papers regarding that branch of the plaintiff's motion ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).
“To obtain a preliminary injunction, a movant must demonstrate, by clear and convincing evidence, (1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) a balancing of the equities in the movant's favor” ( Yedlin v. Lieberman, 102 A.D.3d 769, 961 N.Y.S.2d 186;seeCPLR 6301; Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 862, 552 N.Y.S.2d 918, 552 N.E.2d 166;Arcamone–Makinano v. Britton Prop., Inc., 83 A.D.3d 623, 624, 920 N.Y.S.2d 362). “ ‘[E]conomic loss, which is compensable by money damages, does not constitute irreparable harm’ ” ( Family–Friendly Media, Inc. v. Recorder Tel. Network, 74 A.D.3d 738, 739, 903 N.Y.S.2d 80, quoting EdCia Corp. v. McCormack, 44 A.D.3d 991, 994, 845 N.Y.S.2d 104). Here, in both the first and fifth causes of action, as well as all of the causes of action in the complaint, the plaintiff seeks money damages. “Where, as here, a litigant can fully be recompensed by a monetary award, a preliminary injunction will not issue” ( Dana Distribs., Inc. v. Crown Imports, LLC, 48 A.D.3d 613, 613, 853 N.Y.S.2d 111;see Price Paper & Twine Co. v. Miller, 182 A.D.2d 748, 750, 582 N.Y.S.2d 746). Moreover, on this record, the plaintiff failed to establish a likelihood of success on the merits or a balancing of the equities in her favor. Accordingly, the Surrogate's Court properly denied that branch of the plaintiff's motion which was to preliminarily enjoin the defendants from, inter alia, selling certain real property.
The plaintiff's remaining contentions are without merit.