Opinion
December 14, 1989
Appeal from the Supreme Court, New York County (Shirley Fingerhood, J.).
Upon this appeal, plaintiffs contend that defendant Dominick Corvino failed to demonstrate that he meets the criteria for issuance of a preliminary injunction. Corvino, in his cross appeal, asks that the injunction be extended to restrain plaintiff Somers from selling, transferring, mortgaging or encumbering the entities or their assets without his consent.
In its memorandum opinion, Supreme Court stated, "In this case there is a sharp factual conflict regarding the ownership of the various entities which cannot be resolved on the papers before the court." It nevertheless imposed a preliminary injunction in order to preserve the status quo, relying on a memorandum opinion by the Appellate Division, Second Department, in Swope v Melian ( 35 A.D.2d 981).
It is well-settled law that in order to be entitled to a preliminary injunction (CPLR art 63), the movant must demonstrate irreparable injury absent the injunction, a balance of the equities in favor of injunctive relief and a likelihood of success on the merits (Grant Co. v Srogi, 52 N.Y.2d 496, 517; Albini v Solork Assocs., 37 A.D.2d 835). The existence of a "sharp factual conflict" with respect to the ownership interest by defendant Corvino in the subject real estate, accounting and other ventures obviates any conclusion that he has shown a likelihood of ultimate success on the merits and is fatal to the motion (see, e.g., After Six v 201 E. 66th St. Assocs., 87 A.D.2d 153, 155). Swope v Melian (supra, at 981), relied upon by the IAS court, affirmed a grant of preliminary relief upon conflicting affidavits and an incomplete record which "at the very least raised triable issues which could only be resolved in the main action". This opinion, however, has not been followed even by the Second Department (see, e.g., Delta Franchising v PCP Transmissions, 107 A.D.2d 734; Albini v Solork Assocs., supra). Moreover, the cases cited therein are consistent with the accepted rules (Ming v Simpkins, 59 Misc.2d 853; Brevetti v Tzougros, 42 Misc.2d 171).
We note further that in the event plaintiffs waste the assets of any of the entities in which defendant Corvino may be able to establish a financial interest, he may be fully compensated by an award of monetary damages and has therefore failed to establish that irreparable injury will result if the injunction is not granted (Haulage Enters. Corp. v Hempstead Resources Recovery Corp., 74 A.D.2d 863). Finally, as to a balancing of the equities, Corvino has failed to establish that the hardship sustained by plaintiffs as a result of the imposition of the preliminary injunction would be less than any hardship which he might experience as a result of its denial (Edgeworth Food Corp. v Stephenson, 53 A.D.2d 588; see also, Metropolitan Package Store Assn. v Koch, 80 A.D.2d 940).
Concur — Murphy, P.J., Sullivan, Carro, Wallach and Rubin, JJ.