Opinion
March 1, 1994
Appeal from the Supreme Court, New York County (Myriam J. Altman, J.).
We agree with the IAS Court that plaintiffs' claim that a loan to them was made by defendant Topsoe and that the shares of ERC sent to Topsoe collateralized this loan is not likely to succeed on the merits. The writings exchanged between the parties clearly demonstrate that a sale was both contemplated and consummated and that plaintiffs received $400,000 for a block of 100,000 shares of ERC. Thus, the IAS Court properly denied the preliminary injunction and, inferentially, found insufficient irreparable harm to grant the injunction. Additionally, we add that since ERC's stock is subject to market fluctuation, the equities preponderate in favor of the party which demonstrates a clear right to the stock, in this case, defendants, and therefore a preliminary injunction would be inappropriate.
We have considered all of plaintiffs' claims to the contrary and find them to be without merit.
Concur — Rosenberger, J.P., Ellerin, Kupferman, Nardelli and Williams, JJ.