Preliminary injunction converted to summary judgment

Carroll v Dicker, 2018 NY Slip Op 04305 [2d Dept. 2018]

A motion for a preliminary injunction "opens the record and gives the court authority to pass upon the sufficiency of the underlying pleading" (Guggenheimer v Ginzburg, 43 NY2d 268, 272). "However, the inquiry is limited to whether the plaintiff has a cause of action, and the court's power does not extend to an evaluation of conflicting evidence" (Livas v Mitzner, 303 AD2d 381, 382; see Alexandre v Duvivier, 96 AD3d 788, 789; Masjid Usman, Inc. v Beech 140, LLC, 68 AD3d 942, 942; Ugiri Progressive Community, Inc. v Ukwuozo, 57 AD3d 656, 656-657; Cellular Tel. Co. v Village of Tarrytown, 210 AD2d 196, 197). "Accordingly, the motion court may not, on its own initiative, convert a motion for a preliminary injunction into one for summary judgment without giving adequate notice to the parties and affording them an opportunity to lay bare their proof" (Grand Aerie of Fraternal Order of Eagles v Mostrando, 94 AD3d 1050, 1052; see Hoeffner v John F. Frank, Inc., 302 AD2d 428, 430).

Here, the plaintiffs correctly contend that the Supreme Court, in effect, improperly converted their motion for a preliminary injunction into one for summary judgment without notifying the parties of its intent to do so (see Grand Aerie of Fraternal Order of Eagles v Mostrando, 94 AD3d at 1052). Consequently, the court's determination "was procedurally premature, and it erred in adjudicating the rights of the parties with regard to issues beyond those related to the requested preliminary injunction" (Alexandre v Duvivier, 96 AD3d at 789-790).

Preliminary injunction

Chana v Machon Chana Women's Inst., Inc., 2018 NY Slip Op 03961 [2d Dept. 2018]

To obtain a preliminary injunction, a movant must demonstrate (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 (see CPLR 6301; XXXX, L.P. v 363 Prospect Place, LLC, 153 AD3d 588, 591). A court evaluating a motion for a preliminary injunction must be mindful that the purpose of a preliminary injunction is to maintain the status quo and not to determine the ultimate rights of the parties (see Masjid Usman, Inc. v Beech 140, LLC, 68 AD3d 942, 942; Ying Fung Moy v Hohi Umeki, 10 AD3d 604, 605; see also S.P.Q.R. Co., Inc. v United Rockland Stairs, Inc., 57 AD3d 642, 642).

Emphasis is mine.

 

Personal Jurisdiction. Forum Non Con. Venue. Forum Selection.

CPLR R. 3211(a)(7)  pleading fails to state a cause of action

CPLR § 6301 Grounds for preliminary injunction and temporary restraining order

CPLR R. 327 Inconvenient forum

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

Cantalupo Constr. Corp. v 2319 Richmond Terrace Corp., 2012 NY Slip Op 04310 (2nd Dept. 2012)

Given the circumstances of this case, and in the interests of justice and judicial economy, the Supreme Court should have granted that branch of the plaintiff's motion which was to remove the summary nonpayment proceeding pending in Civil Court, Richmond County, to the Supreme Court, Richmond County, and to consolidate that proceeding with the instant action for specific performance of an alleged agreement to purchase the subject property (see Richmond Amboy Realty, LLC v 3881 Richmond Ave. Realty, Inc., 72 AD3d 783; Kally v Mount Sinai Hosp., 44 AD3d 1010, 1010-1011; Morrell & Co. Wine Emporium v Richalan Realty Corp., 93 AD2d 736, 737).

Gliklad v Cherney, 2012 NY Slip Op 05333 (1st Dept. 2012)

The IAS court erred in granting plaintiff's motion to strike defendant's affirmative defense of lack of personal jurisdiction. Contrary to plaintiff's contention, defendant did not waive this defense by moving for summary judgment dismissing the complaint on the merits, given that defendant had previously raised the jurisdictional defense. Competello v Giorando (51 NY2d 904 [1980]) is distinguishable, as the defendant in that case failed to raise the defense of lack of personal jurisdiction in a motion pursuant to CPLR 3211(a)(7).

Defendant failed to meet his burden of establishing that New York is an inconvenient forum for this action (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984], cert denied 469 US 1108 [1985]). Further, the subject promissory note contained a clause selecting New York as the forum, barring defendant's forum non conveniens motion (see Sebastian Holdings, Inc. v Deutsche Bank AG., 78 AD3d 446, 447 [2010]).

The court properly granted plaintiff's motion for a preliminary injunction barring defendant from prosecuting the action he had commenced in Israel over the same promissory note at issue in the instant action. A party moving for a preliminary injunction must establish a likelihood of success on the merits, irreparable harm if the injunction were not granted, and a balance of the equities in the movant's favor (see W.T. Grant Co. v Srogi, 52 NY2d 496, 517 [1981]; Casita, L.P. v MapleWood Equity Partners [Offshore] Ltd., 43 AD3d 260 [2007]). Here, even if defendant may have a meritorious defense, plaintiff made a prima facie showing that his claim under the promissory note has merit (see Matter of Witham v Finance Invs., Inc., 52 AD3d 403 [2008]; Bingham v Struve, 184 AD2d 85 [1992]). Plaintiff also established a risk that he would suffer irreparable harm if he were to travel to Israel to litigate the other action, since this act might jeopardize his Canadian asylum status. In addition, the balance of the equities favors plaintiff, since the expenditures of time and resources by the parties and the court would be potentially wasted if the Israeli action, which defendant commenced one-and-a-half years after the commencement of the instant action, were to result in a decision precluding any decision the court might have reached in this case (see Jay Franco & Sons Inc. v G Studios, LLC, 34 AD3d 297 [2006]).

Further, defendant appeared to be forum shopping by attempting to obtain a favorable decision from the Israeli court, which would interfere with the New York court's ability to resolve the issues before it (see IRB-Brasil Resseguros S.A. v Portobello Intl. Ltd., 59 AD3d 366 [2009]).

Finally, the court did not err in denying defendant's motion to renew. Contrary to defendant's contention that the court should have ordered plaintiff to post an undertaking to cover defendant's damages in the event the injunction were found to have been erroneously issued, the injunction would actually save both parties time and money by relieving them from the burden of litigating a second action (see Ithilien Realty Corp. v 180 Ludlow Dev. LLC, 80 AD3d 455 [2011]; Visual Equities Inc. v Sotheby's, Inc., 199 AD2d 59 [1993]).

Pratik Apparels, Ltd. v Shintex Apparel Group, Inc., 2012 NY Slip Op 04985 (2nd Dept. 2012)

"A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court. Absent a strong showing that it should be set aside, a forum selection agreement will control" (Hluch v Ski Windham Operating Corp., 85 AD3d 861, 862 [internal quotation marks and citations omitted]; see Bernstein v Wysoki, 77 AD3d 241, 248-249; Stravalle v Land Cargo, Inc., 39 AD3d 735, 736). "Forum selection clauses are enforced because they provide certainty and predictability in the resolution of disputes, particularly those involving international business agreements" (Brooke Group v JCH Syndicate 488, 87 NY2d 530, 534). Here, the forum selection clause contained in the subject bill of lading submitted by the defendant Classic Logistics, Inc. (hereinafter Classic), conclusively established that the plaintiff's action against Classic must be brought in federal court (see CPLR 3211[a][1]; W.J. Deutsch & Sons, Ltd. v Charbaut Am., Inc., 57 AD3d 529, 530). The plaintiff failed to show that enforcement of the forum selection clause would be unreasonable, unjust, or would contravene public policy, or that the clause is invalid because of fraud or overreaching (see Bernstein v Wysoki, 77 AD3d at 249-250; Best Cheese Corp. v All-Ways Forwarding Int'l. Inc., 24 AD3d 580, 581; Koko Contr. v Continental Envtl. Asbestos Removal Corp., 272 AD2d 585, 586).

Kassotis v Kassotis, 2012 NY Slip Op 05148 (2nd Dept. 2012)

Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the plaintiff's cross motion to the extent it did, and in denying the defendant's motion without prejudice to renewal in the Family Court, Westchester County (see CPLR 510[3]; McCarthy v McCarthy, 49 AD3d 696, 697). The parties have litigated issues relating to child support in the Family Court, Westchester County, since 2006. The so-ordered stipulation, which the defendant seeks to modify, was entered in the Family Court, Westchester County. Further, the petitions filed by the defendant in the Family Court, Westchester County, are apparently still pending, as the defendant filed objections to the Support Magistrate's order denying the petitions. The Family Court, Westchester County, is familiar with the issues in the matter, while the Supreme Court, Queens County, has not been involved with the parties since the judgment of divorce was entered in February 1999. In addition, the defendant and the parties' children reside in Westchester County, and it appears that most of the material witnesses are in Westchester County (see CPLR 510[3]; McCarthy v McCarthy, 49 AD3d at 697).

Pruitt v Patsalos, 2012 NY Slip Op 04986 (2nd Dept. 2012)

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, the plaintiffs' motion pursuant to CPLR 510(2) to change the venue of the action from Orange County to Dutchess County is granted, and the Clerk of the Supreme Court, Orange County, is directed to deliver to the Clerk of the Supreme Court, Dutchess County, all papers filed in the action and certified copies of all minutes and entries (see CPLR 511[d]).

To obtain a change of venue pursuant to CPLR 510(2), a movant is required to produce admissible factual evidence demonstrating a strong possibility that an impartial trial cannot be obtained in the county where venue was properly placed (see Matter of Michiel, 48 AD3d 687; Jablonski v Trost, 245 AD2d 338, 339; Albanese v West Nassau Mental Health Ctr., 208 AD2d 665, 666). Under the circumstances of this case, including the evidence demonstrating that the defendant is a retired Orange County Supreme Court Justice, who presided in that court for more than two decades, that his relative is a retired Orange County Court Judge, and that the defendant's daughter is a Support Magistrate in the Orange County Family Court, the protection of the court from even a possible appearance of impropriety requires a change of the venue of the action from Orange County to Dutchess County (see Saxe v OB/GYN Assoc., 86 NY2d 820, 822; Kavelman v Taylor, 245 AD2d 9; Milazzo v Long Is. Light. Co., 106 AD2d 495).

 

Preliminary Injunction

CPLR § 6301 Grounds for preliminary injunction and temporary restraining order

Dover Gourmet Corp. v Nassau Health Care Corp., 2011 NY Slip Op 08555 (2nd Dept., 2011)

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 (see CPLR 6301; Aetna Ins. Co. v Capasso, 75 NY2d 860, 862; Arcamone-Makinano v Britton Prop., Inc., 83 AD3d 623; S.J.J.K. Tennis, Inc. v Confer Bethpage, LLC, 81 AD3d 629; Volunteer Fire Assn. of Tappan, Inc. v County of Rockland, 60 AD3d 666, 667). The decision whether to grant or deny a preliminary injunction rests in the sound discretion of the Supreme Court (see Doe v Axelrod, 73 NY2d 748, 750; Rowland v Dushin, 82 AD3d 738; Trump on the Ocean, LLC v Ash, 81 AD3d 713, 715; City of Long Beach v Sterling Am. Capital, LLC, 40 AD3d 902). Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying the plaintiff's motion for a preliminary injunction.

CPLR § 6301

CPLR § 6301 Grounds for preliminary injunction and temporary restraining order

Dixon v Malouf, 2009 NY Slip Op 02745 (App. Div., 2nd, 2009)

To be entitled to a preliminary injunction, the moving party has the
burden of demonstrating (1) a likelihood of success on the merits, (2)
irreparable injury absent granting the preliminary injunction, and (3)
a balancing of the equities in the movant's favor
(see CPLR 6301; Aetna Ins. Co. v Capasso, 75 NY2d 860, 862; Coinmach Corp. v Alley Pond Owners Corp., 25 AD3d 642,
643). The purpose of a preliminary injunction is to maintain the status
quo and prevent the dissipation of property that could render a
judgment ineffectual (see Ruiz v Meloney, 26 AD3d 485, 486; Ying Fung Moy v Hohi Umeki, 10 AD3d 604). The decision to grant or deny a preliminary injunction rests in the sound discretion of the Supreme Court (see Ruiz v Meloney, 26 AD3d at 486).

Here, the plaintiff failed to meet his burden of demonstrating
that he would suffer irreparable injury if the preliminary injunction
were not granted (see Automated Waste Disposal, Inc. v Mid-Hudson Waste, Inc., 50 AD3d 1072, 1073; Khan v State Univ. of N.Y. Health Science Ctr. at Brooklyn, 271 AD2d 656, 657; Neos v Lacey, 291 AD2d 434, 435; Kurzban & Son v Board of Educ. of City of N.Y., 129 AD2d 756, 757). Accordingly, the Supreme Court properly denied his cross [*2]motion for a preliminary injunction.

The bold is mine.