Opinion
August 28, 1995
Appeal from the Supreme Court, Queens County (Lane, J.).
Ordered that the order dated March 16, 1995, is reversed insofar as appealed from, on the law, with costs, and the plaintiff's motion for a preliminary injunction is denied.
The Supreme Court did not improvidently exercise its discretion when it, in effect, vacated its prior order, which was entered without opposition. The defendant showed that it did not have actual notice of the plaintiff's motion and it had a meritorious defense ( see, CPLR 5015[a][1]; Brown v. Long Beach Mem. Hosp., 196 A.D.2d 802; Robles v. Grace Episcopal Church, 192 A.D.2d 515). Therefore, the defendant's default was properly excused.
However, the Supreme Court improperly granted the plaintiff's motion for a preliminary injunction which granted mandatory relief. It is well settled that in order to be entitled to a preliminary injunction, a movant must clearly demonstrate (1) a likelihood of ultimate success on the merits, (2) irreparable injury absent granting of the preliminary injunction, and (3) a balancing of the equities in the movant's favor (see, e.g., Doe v. Axelrod, 73 N.Y.2d 748; Doe v. Poe, 189 A.D.2d 132). A mandatory injunction should not be granted, absent extraordinary circumstances, where the status quo would be disturbed and the plaintiff would receive the ultimate relief sought, pendente lite (see, Bachman v. Harrington, 184 N.Y. 458, 464; Morgan v. New York Racing Assn., 72 A.D.2d 740, 741; Ash v. Holdeman, 5 A.D.2d 1017, 1018). The plaintiff has failed to satisfy its heavy burden of proving a clear right to mandatory injunctive relief, which, in effect, would grant the plaintiff the ultimate relief requested. The record reveals many unresolved issues, and therefore it cannot be determined whether there is a likelihood that the plaintiff will succeed on the merits (see, Anastasi v. Majopon Realty Corp., 181 A.D.2d 706). Similarly, the plaintiff failed to submit sufficient proof to show that it would suffer irreparable injury absent the granting of this preliminary injunction (see, Kurzban Son v. Board of Educ., 129 A.D.2d 756; L J Roost v Department of Consumer Affairs, 128 A.D.2d 677). The circumstances presented in this case are not of such an extraordinary nature so as to warrant mandatory relief (see, Bachman v. Harrington, supra; Morgan v. New York Racing Assn., supra; Ash v. Holdeman, supra). Copertino, J.P., Santucci, Altman and Friedmann, JJ., concur.