Berman v TRG Waterfront Lender, LLC, 2020 NY Slip Op 01902 [2d Dept. 2020]
“[A]bsent extraordinary circumstances, a preliminary injunction will not issue where to do so would grant the movant the ultimate relief to which he or she would be entitled in a final judgment” (SHS Baisley, LLC v Res Land, Inc., 18 AD3d 727, 728; accord Zoller v HSBC Mtge. Corp [USA], 135 AD3d 932, 933; see Board of Mgrs. of Wharfside Condominium v Nehrich, 73 AD3d 822, 824). Here, as TRG and Hansen contend, the Supreme Court should not have, in effect, granted the ultimate relief requested in Berman’s complaint, which was the return of the down payment. In ordering Hansen to return the down payment to Berman, the court, in effect, treated Berman’s motion as one for summary judgment (see CPLR 3212; St. Paul Fire & Mar. Ins. Co. v York Claims Serv., 308 AD2d 347, 349), which was improper, as issue had not been joined (see CPLR 3212[a]; City of Rochester v Chairella, 65 NY2d 92, 101; St. Paul Fire & Mar. Ins. Co. v York Claims Serv., 308 AD2d at 349).
Moreover, Berman failed to demonstrate his entitlement to temporary injunctive relief pursuant to CPLR 6301, as he failed to establish any of the three required elements for such relief: (1) likelihood of ultimate success on the merits, (2) irreparable injury absent granting of a preliminary injunction, (3) and a balancing of equities in his favor (see Keller v Kay, 170 AD3d 978, 981; Carroll v Dicker, 162 AD3d 741, 742; St. Paul Fire & Mar. Ins. Co. v York Claims Serv., 308 AD2d at 348).