White v. F.F. Thompson Health System, Inc.

[1076] Appeal from an order of the Supreme Court, Ontario County (William F. Kocher, A.J.), entered October 23, 2009 in an action for, inter alia, a permanent injunction. The order granted the motion of plaintiffs for a preliminary injunction. It is hereby ordered that the order so appealed from is reversed on the law without costs, the motion is denied, and the preliminary injunction is vacated. Memorandum: Catherine’B. White (plaintiff) is a resident of Ferris Hills at West Lake (Ferris Hills), an independent senior living facility owned and operated by defendants. Ferris Hills does not provide medical or health care services to its residents. The residents or their families may, however, hire their own aides to come to the facility to provide treatment and care. Pursuant to the Residency Agreement executed by plaintiff when she moved into her apartment at Ferris Hills, she is required to “comply with all reasonable procedures, policies and rules” set by defendants at that time or in the future. In response to complaints from residents and their families concerning inappropriate conduct by aides at the facility, defendants subsequently required all aides who enter Ferris Hills to sign a Caregiver Agreement (agreement), which sets forth rules and regulations for aides to follow while at the facility. Defendants also required the residents who employed the aides to sign the agreement. Plaintiff and her sons objected to the proposed agreement and, despite the fact that defendants made several accommodations for plaintiff and struck various provisions of the agreement at her sons’ request, plaintiff refused to sign it. When defendants notified plaintiff that her aides would be prohibited from entering Ferris Hills if she and they did not sign the agreement as modified, plaintiffs commenced this action seeking, inter alia, injunctive relief. Plaintiffs also moved by order to show cause for a preliminary injunction enjoining defendants from prohibiting plaintiffs three aides from entering Ferris Hills. Supreme Court issued a preliminary injunction, and defendant appealed. We now reverse. To prevail on a motion for a preliminary injunction, the moving party must establish, inter alia, that irreparable harm will result if provisional relief is not granted (see Doe v Axelrod, 73 [1077] NY2d 748 [1988]). The prospect of irreparable harm must be “imminent, not remote or speculative” (Golden v Steam Heat, 216 AD2d 440, 442 [1995]), and, here, plaintiff failed to make such a showing (see generally GFI Sec., LLC v Tradition Asiel Sec., Inc., 61 AD3d 586 [2009]; Copart of Conn., Inc. v Long Is. Auto Realty, LLC, 42 AD3d 420, 421 [2007]). As the director of Ferris Hills made clear in an affidavit submitted in opposition to the order to show cause, defendants have no objection to the aides who currently provide services to plaintiff, provided that they sign the agreement and follow the rules set forth therein. Plaintiffs did not dispute that point. Additionally, there is no evidence that any of plaintiffs aides expressed opposition to signing the agreement. Thus, plaintiff would be harmed by enforcement of the agreement only in the event that her aides refused to sign the agreement or failed to comply with its rules, and there is no indication in the record that either scenario is likely to occur. In the absence of a showing that plaintiff faced the imminent prospect of irreparable harm in the absence of provisional relief, the court abused its discretion in issuing a preliminary injunction, and, accordingly, there is no need for us to determine whether plaintiffs demonstrated a likelihood of success on the merits or whether the equities weigh in their favor (see generally Golden, 216 AD2d at 442). All concur except Smith, J.E, and Pine, J., who dissent and vote to affirm in the following memorandum.