Mosseri v. Fried — 289 A.D.2d 545

Majority

p. 545

Salomon Mosseri et al., Appellants, v Josef Fried et al., Respondents.

[735 NYS2d 794]

In an action, inter alia, to recover damages for trespass* the plaintiffs appeal from an order of the Supreme Court, Kings County (Harkavy, J.), dated February 2, 2001, which, after a hearing, denied their motion for a preliminary injunction enjoining the defendants from doing construction work on certain premises.

Ordered that the notice of appeal from a decision of the same court dated April 19, 2000, is deemed a premature notice of appeal from the order (see, CPLR 5520 [c]); and it is further,

Ordered that the order is affirmed, with costs.

The decision to grant a preliminary injunction is a matter ordinarily committed to the sound discretion of the Supreme Court (see, Doe v Axelrod, 73 NY2d 748 , 750). To prevail on a motion for a preliminary injunction, the movants “must demonstrate (1) a likelihood of ultimate success on the merits; (2) danger of irreparable harm unless the injunction is granted; and (3) a balance of the equities in [their] favor” (Nelson, L.P. v Jannace, 248 AD2d 448 , 449; see, Aetna Ins. Co. v Capasso, 75 NY2d 860 , 862).

Here, the plaintiffs failed to demonstrate that they are likely

p. 546

to succeed on the merits of the action. To satisfy this burden, the plaintiffs were required to “demonstrate a clear right to relief which is ‘plain from the undisputed facts’ ” (Blueberries Gourmet v Aris Realty Corp., 255 AD2d 348 , 350, quoting Family Affair Haircutters v Detling, 110 AD2d 745 , 747). Since the facts of this case are sharply disputed, the plaintiffs failed to demonstrate a clear right to injunctive relief. Thus, the Supreme Court properly denied the plaintiffs’ motion for a preliminary injunction enjoining the defendants from doing construction work on certain premises (see, Sumiko Enters. v Town Realty Co., 259 AD2d 483 ). Altman, J. P., Adams, Townes and Prudenti, JJ., concur.

Cases cited

Nelson, L.P. v. Jannace 248 AD2d 448 N.Y. App. Div. 1998-03-09 at 449 p. 545
Aetna Insurance v. Capasso 75 NY2d 860 N.Y. 1990-02-22 at 862 p. 545
Blueberries Gourmet, Inc. v. Aris Realty Corp. 255 AD2d 348 N.Y. App. Div. 1998-11-09 at 350 p. 546
Family Affair Haircutters, Inc. v. Detling 110 AD2d 745 N.Y. App. Div. 1985-04-15 at 747 p. 546
Sumiko Enterprises, Inc. v. Town Realty Co. 259 AD2d 483 N.Y. App. Div. 1999-03-01 p. 546