Mosseri v. Fried

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 [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.