Opinion
Index No. 910108-21
02-24-2022
21TECH LLC, Plaintiff, v. GCOM SOFTWARE LLC, Defendant.
Hodgson Russ LLP, Attorneys for Plaintiff, (Christopher Massaroni and Michael D. Zahler, of counsel), 677 Broadway, Suite 301, Albany, New York 12207 Wasserman Grubin & Rogers, LLP, Attorneys for Defendant, (Richard Wasserman and Isabel D. Knott, of counsel), 1700 Broadway, 16th Floor, New York, New York 10019
Hodgson Russ LLP, Attorneys for Plaintiff, (Christopher Massaroni and Michael D. Zahler, of counsel), 677 Broadway, Suite 301, Albany, New York 12207
Wasserman Grubin & Rogers, LLP, Attorneys for Defendant, (Richard Wasserman and Isabel D. Knott, of counsel), 1700 Broadway, 16th Floor, New York, New York 10019
Richard M. Platkin, J.
This is a commercial action brought by a subcontractor, plaintiff 21Tech LLC ("21Tech"), against its general contractor, defendant GCOM Software LLC ("GCOM"). The subcontracted work pertains to the development and delivery of an enterprise asset management ("EAM") system for the New York State Department of Corrections and Community Supervision ("DOCCS").
21Tech moves for a preliminary injunction: (1) directing GCOM to allow it to perform all remaining work and services under the parties’ Subcontractor Agreement and the Statement of Work annexed thereto; (2) directing GCOM to notify 21Tech of any planned meetings between GCOM and DOCCS concerning 21Tech's area of responsibility under the foregoing agreements and to allow 21Tech to attend such meetings; and (3) enjoining GCOM from taking any actions in violation of the Subcontractor Agreement. GCOM opposes the motion.
BACKGROUND
A. The Parties
21Tech is a consulting firm that "provides business and technology solutions to private and public clients. Among other things, 21Tech has expertise in developing and deploying [EAMs] for public clients" (NYSCEF Doc No. 18 ["Complaint"], ¶ 5; see also NYSCEF Doc No. 5 ["Kahai Aff."], ¶ 2).
GCOM is a "technology, data and analytics company focused on the provision of government service solutions" (NYSCEF Doc No. 35 ["Mirza Aff."], ¶ 4; see Complaint, ¶ 7).
B. The Project
In 2018, DOCCS issued "Mini-Bid #2018 — Enterprise Asset Management System," by which it sought to procure "an EAM system that would make available to DOCCS information about equipment and assets located across more than 50 prison facilities" (Mirza Aff., ¶ 5; see Complaint, ¶ 17). DOCCS already had selected an "established EAM [software] platform," developed by nonparty Infor, and it "needed a contractor to configure th[at] system to bring in data about all prison assets and business processes" (Mirza Aff., ¶ 5).
GCOM submitted a proposal to DOCCS for the EAM project ("Project") in November 2018 (see NYSCEF Doc No. 22 ["Proposal"]). GCOM identified 21Tech as a key subcontractor on "Team GCOM" and described 21Tech as "an industry leader in EAM deployments and integrations for the Public Sector that has extensive experience with municipal governments, transit, and utilities having implemented numerous [EAM] applications" (id., pp. 18, 23).
DOCCS awarded the EAM contract to GCOM in 2019 (see Complaint, ¶ 33). The contracted work was to be performed in two phases: Phase 1 involved the development and deployment of "a fully functional EAM at DOCCS’ Coxsackie and Greene facilities"; and Phase 2 encompassed "data loading, training, and deployment of the Phase 1 ... solution at nine additional DOCCS’ facilities" (id., ¶¶ 35-36).
GCOM and 21Tech entered into the Subcontractor Agreement on November 15, 2019 (see NYSCEF Doc No. 23 ["Subcontract" or "Agreement"]). Appendix 1 of the Subcontract is a Statement of Work ("SOW") "list[ing] out 21 Tech's responsibilities for the" Project and establishing a payment schedule (see id., Ex. 1). Most of this document is a table identifying 137 Project tasks, but the table is preceded by text stating, among other things, that the "Start date" for the work shall be "September 1, 2019" and the "Duration" shall be "24 months + 90 day Warranty" (id., p. 1).
GCOM also allocated some of the work on the Project to a different subcontractor, Innovee Consulting LLC (see Mirza Aff., ¶ 6), which is not involved in this litigation.
C. This Litigation
21Tech commenced this action on December 7, 2021 through the electronic filing of a summons and complaint. As originally filed, the complaint principally alleged that GCOM breached the Subcontract by: (1) preventing 21Tech from attending a December 8, 2021 meeting with DOCCS at which 21Tech's areas of responsibility were to be discussed; (2) failing to pay 21Tech the Phase 1 retainage; and (3) refusing to allow 21Tech to perform Phase 2 work (see NYSCEF Doc No. 2).
21Tech's initiatory papers were accompanied by a proposed Order to Show Cause, by which it sought a temporary restraining order ("TRO") and preliminary injunction preventing GCOM from engaging in substantive discussions with DOCCS concerning 21Tech's area of responsibility under the Subcontract/SOW outside of 21Tech's presence (see NYSCEF Doc No. 10). Following a hearing, the Court struck the TRO and assigned the application a return date of January 3, 2022 (see NYSCEF Doc No. 13).
In striking the TRO, the Court relied on the representation of GCOM's counsel that the December 8, 2021 meeting with DOCCS was not going forward, and GCOM would promptly notify 21Tech of any scheduled meetings with DOCCS that would involve substantive discussions concerning 21Tech's area of responsibility (see id.). The same understanding later was memorialized in a letter order (see NYSCEF Doc No. 17) and in an amended order to show cause (see NYSCEF Doc No. 33).
On December 31, 2021, 21Tech filed an amended complaint, together with a proposed Amended Order to Show Cause and supporting papers (see NYSCEF Doc Nos. 18-31). The new filings were based upon GCOM's letter of December 15, 2021, by which GCOM purported to terminate the Subcontract based upon: (1) expiration of the SOW following conclusion of its stated 24-month "duration"; (2) GCOM's claimed ability to unilaterally diminish or delete 21Tech's scope of work; (3) 21Tech's alleged multiple defaults under the Subcontract; and (4) changed circumstances on the part of DOCCS (see NYSCEF Doc No. 24 ["Termination Letter"]). The Court signed the Amended Order to Show Cause on January 3, 2022 after again striking the temporary relief (see NYSCEF Doc No. 33).
GCOM served answering papers on January 11, 2022, and 21Tech served a reply on January 18, 2022. Oral argument was held on February 16, 2022, and this expedited Decision & Order follows.
ANALYSIS
A party seeking the drastic remedy of preliminary injunction must demonstrate "a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor" ( Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005] ; see CPLR 6301 ). Each of these elements must be established by clear and convincing evidence (see Walsh v St. Mary's Church, 248 AD2d 792, 793 [3d Dept 1998] ), which is a "particularly high" burden ( Sync Realty Group, Inc. v Rotterdam Ventures, Inc., 63 AD3d 1429, 1431 [3d Dept 2009] [internal quotation marks and citation omitted]).
The burden is even higher for a party seeking a mandatory preliminary injunction — one that alters the status quo by compelling an affirmative act or that provides the movant with substantially all of the ultimate relief that it seeks in the litigation. Such an injunction may issue only where the movant has demonstrated a clear likelihood of success on the merits and made a strong showing of imminent and irreparable harm (see Lehey v Goldburt, 90 AD3d 410, 411 [1st Dept 2011] ; Second on Second Café, Inc. v Hing Sing Trading, Inc., 66 AD3d 255, 265 [1st Dept 2009] ; SHS Baisley, LLC v Res Land, Inc., 18 AD3d 727, 728 [2d Dept 2005] ; see also Tom Doherty Assoc., Inc. v Saban Entertainment, Inc., 60 F3d 27, 34 [2d Cir 1995] ).
"The decision to grant or deny a request for a preliminary injunction is committed to the sound discretion of the trial court" ( Biles v Whisher, 160 AD3d 1159, 1160 [3d Dept 2018] [internal quotation marks and citation omitted]; see Matter of Gerges v Koch, 62 NY2d 84, 94-95 [1984] ). "[A] preliminary injunction is an extraordinary remedy never awarded as of right" ( Benisek v Lamone, ––– US ––––, ––––, 138 S Ct 1942, 1943 [2018] [internal quotation marks and citation omitted]).
A. Likelihood of Success
21Tech contends that it has a "strong likelihood of success" on the merits of its claims, "particularly those sounding in breach of contract" (NYSCEF Doc No. 31, p. 31). Specifically, 21Tech argues that GCOM "breached the Agreement by ...: (i) attempting to terminate the Agreement in direct contravention of [its] terms ..., (ii) refusing to allow 21Tech to perform work allocated to it under the Agreement, (iii) performing work allocated to 21Tech under the Agreement, and (iv) disregarding the provisions of the Agreement that specifically ensure that 21Tech may attend meetings with DOCCS at which 21Tech's project role is substantively discussed" (id.).
1. Claimed Expiration of the SOW
GCOM first argues that "21Tech's application for injunctive relief is moot in light of the September 1, 2021 expiration of 21Tech's SOW and, subsequently, the December 15, 2021 termination of the Subcontract. There is no ongoing contract and, as such, no valid basis for 21Tech's request for preliminary injunctive relief" (NYSCEF Doc No. 34, p. 4; see id., pp. 6-7).
21Tech responds that the SOW was intended to be coterminous with the Subcontract, which itself is "coterminous with the contract between GCOM and [DOCCS]" (Subcontract, ¶ 4). And to the extent that there is any inconsistency between the Subcontract and the language in the SOW stating that 21Tech's work will have a "[d]uration" of "24 months" measured from a "[s]tart date" of September 1, 2019 ("Duration Language"), the Subcontract is controlling.
As an initial matter, the Court is unconvinced by 21Tech's argument that Section 4 of the Subcontract, captioned "Term," would override language in the SOW clearly expressing the parties’ mutual intention to have a particular task authorization or scope of work expire prior to expiration of the Subcontract.
Section 4 establishes that the Subcontract "shall be coterminous with the contract between GCOM and [DOCCS] dated July 1, 2019" (emphasis added). However, the Subcontract is a master services agreement that does not, in and of itself, confer upon 21Tech the right to perform any particular scope of work. Rather, the Subcontract serves "as a master agreement under which the Parties can enter into multiple specific transactions by executing an SOW" (Subcontract, ¶ 1 [emphasis added]).
Thus, while the Subcontract remains in effect throughout the entire duration of the DOCCS/GCOM contract (absent termination under Section 5), there is nothing in the Subcontract that forecloses the parties from expressing their mutual intention to have the SOW (or an authorization therein to perform particular tasks) terminate as of an earlier date. And the language of the contract documents supports GCOM's position that this type of automatic termination provision in the SOW would be controlling (see id., ¶ 18.13 [incorporating SOW into Subcontract and providing that "[i]n the event of any inconsistency or conflict," SOW shall be given precedence]).
On the other hand, the parties equally were free to have the SOW be coterminous with the Subcontract, which would seem to be the default situation absent any contrary direction in the SOW. The question ultimately is one of intent. Thus, the issue here is whether the parties have manifested their mutual intention to have the SOW terminate as of September 1, 2021, regardless of the status of the Project and 21Tech's assigned tasks.
As stated above, the bulk of the SOW is a table "list[ing] out 21Tech's responsibilities for the ... [P]roject" (SOW, p. 1). The table identifies 137 discrete tasks to which 21Tech is assigned an "Owner" or "Assist" role, and this table is preceded by text stating, among other things, that the "Start date" for the Project shall be "September 1, 2019" and the "Duration" of the Project shall be "24 months + 90 day Warranty" (id.). From this, GCOM contends that the SOW expired on September 1, 2021.
There also are a few tasks belonging solely to DOCCS.
The text preceding the table also: (i) identifies members of the "Subcontractor Project Team"; states that the SOW is subject to the terms and conditions of the Subcontract; and (iii) identifies the "Client" as DOCCS, and the "Project" as the EAM Project.
While GCOM's textual argument is not without some force, the Court finds that 21Tech has raised legitimate questions as to whether the Duration Language was intended to automatically terminate the SOW as of September 1, 2021 or otherwise operate as a temporal condition upon 21Tech's performance of the assigned tasks.
As 21Tech observes, the contract between GCOM and DOCCS was intended to "be executed in twenty-four (24) months, along with 90-day support and warranty period" (Proposal, p. 18), but it was extended due to the COVID-19 pandemic (see NYSCEF Doc No. 28). Thus, 21Tech plausibly argues that the reference in the SOW to a "[d]uration" of "24 months" merely reflected the parties’ initial plan and expectation of completing the Phase 1 and 2 work by September 1, 2021.
Further, the Court is mindful that it is construing a "Statement of Work," an instrument intended to enumerate the specific items of "work" assigned by GCOM to 21Tech. To be sure, the SOW also includes prefatory language stating that the work shall have a "[d]uration" of "24 months" (and setting forth members of the "Project Team"), but there is nothing in the SOW clearly stating that the Duration Language was intended to operate as a condition upon the performance of 21Tech's work or otherwise address the effect of Project delays on the subcontracted work.
In other words, it is unclear whether inclusion of the Duration Language in the SOW was intended to constitute a condition, a promise, a factual recitation or something else.
Moreover, 21Tech has submitted persuasive evidence that GCOM did not arrive at its interpretation of the Duration Language until after the parties already were embroiled in litigation. From September 2021 through November 2021, the parties apparently continued working together on the Project in their usual manner, including meeting several times per week (see NYSCEF Doc No. 20 ["Kahai II"], ¶ 21 [c]). Additionally, GCOM sent 21Tech an updated "Project Plan" on May 24, 2021 contemplating the completion of 21Tech's scope of work in May 2022 (id., ¶ 21 [a]; NYSCEF Doc No. 26) and a revised plan on November 19, 2021 — several months after the purported automatic termination — contemplating that 21Tech's work would continue into April 2023 (see Kahai II, ¶ 21 [b]; NYSCEF Doc No. 27).
In light of the foregoing, neither side has convincingly demonstrated that the Duration Language "has a definite and precise meaning, unattended by danger of misconception in the purport of the [Subcontract] itself, and concerning which there is no reasonable basis for a difference of opinion" ( Ellington v EMI Music, Inc., 24 NY3d 239, 244 [2014] [internal quotation marks and citations omitted]).
The Court therefore finds that 21Tech has shown a reasonable probability of success in ultimately demonstrating that the parties did not intend the SOW to automatically expire on September 1, 2021 (cf. Modern Mktg. Concepts, Inc. v GAF Materials LLC, 195 AD3d 1204, 1205 [3d Dept 2021] ).
2. GCOM's Right to Modify/Diminish the Scope of Work
The second ground stated in the Termination Letter is that Section 1 of the Subcontract permitted GCOM to modify or diminish the scope of services to be provided by 21Tech, and to the extent that the SOW has not automatically expired, "GCOM has elected to delete ... any and all remaining Phase 2 work" from the SOW (Termination Letter, p. 1).
Under Section 1, the parties agreed that "GCOM may request services in addition to or different from those services set forth in [the SOW] by following the change control process." Even assuming that this language was intended to encompass the deletion of 21Tech's entire remaining scope of work, there is no allegation that GCOM's purported deletion of such work was done in accordance with any "change control process." Indeed, the contract documents (see Subcontract, ¶ 18.13) do not establish any "change control process." Moreover, Section 1 merely authorizes GCOM to "request [additional or different] services" (emphasis added); it does not confer upon GCOM the unilateral right to direct such a change.
In the absence of an agreed-upon "change control process" giving GCOM the unilateral right to diminish 21Tech's scope of work, the general provisions of the Subcontract concerning contract modification and amendment must be given effect. After all, the SOW, a signed writing of the parties, is incorporated by reference into the Subcontract (see id., ¶ 18.13), and the Subcontract "may be modified or amended only by a written agreement executed by all of the Parties" (id., ¶ 18.3).
Accordingly, 21Tech is highly likely to succeed in demonstrating that GCOM's purported unilateral termination of its remaining scope of work was not a legitimate exercise of GCOM's contractual right under Section 1 of the Subcontract to request additional or different services.
3. 21Tech's Alleged Defaults
Next, the Termination Letter states that 21Tech is in default of its obligations under the Subcontract in at least five different respects (see Termination Letter, p. 1).
Section 5 of the Subcontract entitles GCOM to terminate the Subcontract and SOW based upon 21Tech's default if "such default is not cured within twenty (20) days of receipt of a notice from [GCOM] specifying such default" (Subcontract, ¶ 5.1). The Subcontract requires this notice to be in writing and delivered by GCOM to the address designated by 21Tech, "which initially shall be the address on the signature page to this Agreement" (id., ¶ 18.6).
There is no record evidence showing that GCOM provided 21Tech with notice and an opportunity to cure in the form and manner required by Section 5. Absent exceptions not shown to be applicable here, "a party's termination is ineffective where the relevant contract provides for a notice to cure and notice is not provided" ( East Empire Constr. Inc. v Borough Constr. Group LLC, 200 AD3d 1, 5 [1st Dept 2021] ). In other words, "where contracting parties agree on a termination procedure, the procedure will be enforced as written" (id.).
Accordingly, it is highly likely that 21Tech will succeed in demonstrating that GCOM did not validly terminate the Subcontract or SOW under Section 5.
4. Changed Circumstances
The final ground for termination is "changed circumstances impacting the nature, scope and timing of the [P]roject ... due to changes in the needs of [DOCCS]" (Termination Letter, p. 2). Even following oral argument, it remains unclear what exactly GCOM means by this. It is clear, however, that GCOM's invocation of "changed circumstances," standing alone, is unlikely to provide a basis for its termination of the Subcontract/SOW (cf. Subcontract, ¶ 5.2 [ii] [permitting GCOM to terminate Subcontract based upon DOCCS’ written directive]).
5. Conclusion
In the Termination Letter, GCOM stated four grounds upon which it was entitled to terminate the Subcontract or, at a minimum, deny 21Tech the opportunity to perform any further work under the SOW.
Of these four grounds, the impropriety of three of them is apparent: (1) GCOM's claimed unilateral authority to delete tasks from the SOW; (2) the alleged defaults for which GCOM did not provide notice and an opportunity to cure in compliance with the strict terms of the Subcontract; and (3) GCOM's conclusory invocation of "changed circumstances."
On the other hand, GCOM's contention that the SOW expired by its own terms due to the Duration Language raises a legitimate defense to 21Tech's allegations of wrongful termination. For the reasons previously stated, however, 21Tech has shown a reasonable likelihood of success in ultimately demonstrating that the Duration Language was not intended to operate as an automatic termination clause or a temporal condition on the performance of the tasks assigned to 21Tech in the SOW.
B. Irreparable Harm
The second, and perhaps the most critical, element necessary to obtain a preliminary injunction is proof of irreparable harm (see Nobu Next Door, 4 NY3d at 840 ). In this context, irreparable harm means an injury for which a monetary award alone cannot be adequate compensation (see Town of Liberty Volunteer Ambulance Corp. v Catskill Regional Med. Ctr., 30 AD3d 739, 730 [3d Dept 2006] ). The claimed injury must be more than just a mere possibility; it must be imminent and likely to occur absent issuance of the requested injunction (see Golden v Steam Heat, 216 AD2d 440, 442 [2d Dept 1995] ; see also American Commerce Ins. Co. v Francois, 125 AD3d 903, 903 [2d Dept 2016] ["imminent and nonspeculative harm"]).
This primarily is a breach-of-contract action, and to the extent that 21Tech ultimately demonstrates that GCOM wrongfully terminated the Subcontract or SOW, 21Tech will be entitled to recover lost profits on any unperformed work, together with any other contract damages identifiable with reasonable certainty that were within the reasonable contemplation of the contracting parties.
Nonetheless, 21Tech maintains that a preliminary injunction is essential because: (i) 21Tech had a business plan to produce EAM systems for correctional departments; (ii) GCOM was aware of 21Tech's plan; (iii) the DOCCS contract is a highly unique, first-of-its-kind opportunity; and (iv) by being deprived of the ability to complete the Phase 2 work, "21Tech will suffer a loss of reputation in this field, will be permanently impaired in developing this line of business, and will be irreparably harmed" (NYSCEF Doc No. 53, p. 12).
The Court is unpersuaded by 21Tech's arguments and finds this not to be one of the rare cases in which a mandatory preliminary injunction is warranted to avoid the loss of prospective goodwill and prospective customer relationships.
21Tech is a company with "expertise in developing and deploying [EAM] systems" (Complaint, ¶ 5) that has " ‘extensive experience’ " in implementing EAM applications for " ‘municipal governments, transit, and utilities’ " (id., ¶ 10, quoting Proposal, p. 18). It was an experienced EAM contractor prior to joining "Team GCOM" (id., ¶¶ 31-32), and there is no claim that denial of the requested injunction would destroy 21Tech or disrupt any of its existing lines of business. Further, despite its falling out with GCOM, nothing prevents 21Tech from pursuing EAM work with other corrections agencies and systems integrators, particularly given its hands-on experience in developing DOCCS’ prototype EAM system.
21Tech emphasizes its expectation of using successful completion of the Project as leverage for securing new correctional clients (see Kahai II, ¶¶ 28-33; Complaint, ¶ 6), but the Court finds the claimed loss of the prospective goodwill and customer relationships that may have accrued from successful completion of the Project to be too speculative and uncertain to serve as a basis for the requested mandatory injunction (cf. Tom Doherty Assoc., 60 F3d at 38 [unique opportunity to license popular cartoon characters]). Indeed, successful performance of the Subcontract/SOW was no foregone conclusion, even apart from the allegations of wrongful termination (see Mirza Aff., ¶¶ 17-33).
Moreover, there is nothing particularly unique about the loss of a subcontract carrying with it adverse consequences for future business, particularly in the public sector. While a subcontractor litigates its claim of wrongful termination, which often is a multi-year process, the subcontractor not only loses the anticipated reputational benefits that it hoped to gain from successful performance of the work, but also suffers some degree of stigma and competitive disadvantage. Termination may also affect the subcontractor's bonding capability and potentially even lead to debarment from public work. But despite these potential harms, courts rarely, if ever, grant mandatory preliminary injunctions requiring a general contractor and its subcontractor to work together under a disputed contract, pendente lite.
The Court therefore finds that 21Tech has failed to sufficiently demonstrate the prospect of imminent and irreparable harm of a nonspeculative nature warranting the extraordinary mandatory preliminary injunction sought by it.
C. Balancing of the Equities
Finally, a preliminary injunction will not issue unless a balancing of equities, "including the public interest," tips in favor of such relief ( Quinn v Cuomo, 69 Misc 3d 171, 177 [Sup Ct, Queens County 2020], affd as mod on other grounds 183 AD3d 928 [2d Dept 2020] ). Given 21Tech's failure to establish imminent and irreparable harm of a nonspeculative nature and the clear likelihood of success needed for a mandatory preliminary injunction, there is no need to delve too deeply into the equities as between the parties.
The Court does, however, feel constrained to express its unease with the nature of the judicial intervention sought by 21Tech and the effect that this relief would have on DOCCS, a government agency that is not a party to this action.
An order requiring GCOM to allow 21Tech to attend all meetings with DOCCS "at which there will be substantive discussions concerning 21Tech's area of responsibility" is vague and likely would engender disputes about what meetings were scheduled and held, the intended purpose of the meetings, and the level of "substantive discussion" about "21Tech's areas of responsibility" that actually occurred at the meetings. And determination of these issues likely would require the participation of DOCCS, including testimony from agency staff involved in the Project meetings.
At a more fundamental level, given the parties’ now-contentious relationship and GCOM's dissatisfaction with certain aspects of 21Tech's Phase 1 work (see Mirza Aff., ¶¶ 17-33), "numerous disputes" are likely to arise from an injunction requiring GCOM and 21Tech to work together on the remaining Phase 2 tasks ( Niagara Mohawk Power Corp. v Graver Tank & Mfg. Co., 470 F Supp 1308, 1326 [ND NY 1979] ). If such an injunction were issued, the Court would expect a flurry of formal notices, demands to cure, new termination letters, and applications to the Court for enforcement of the injunction. And again, judicial resolution of those disputes likely would impose real and ongoing burdens upon nonparty DOCCS.
Finally, an injunction restraining GCOM from taking any actions in violation of the Subcontract would amount to "little more than a direction to do right in the future" ( Gimbel Bros. v Brook Shopping Ctrs., 118 AD2d 532, 536 [2d Dept 1986] [internal quotation marks and citation omitted]). To the extent that this type of generalized directive is capable of enforcement, it inappropriately would place the Court in a role amounting to Project supervisor (see Ratner v Tavern-On-The-Green, 11 Misc 2d 564, 566 [Sup Ct, NY County 1958] ; Close v Flesher, 8 Misc 299, 302 [NY Com Pl 1894] ; see also 67A NY Jur 2d Injunctions § 55 ).
As an executive-branch agency of the State of New York, DOCCS is charged with carrying out its important public functions in an efficient and cost-effective manner. It is not the proper role of the Judiciary to entangle itself (and the parties’ attorneys) in those affairs on an ongoing basis absent compelling and extraordinary circumstances. This contract dispute between DOCCS’ general contractor and its subcontractor is not such a case.
Accordingly, the public interest weighs against the requested injunctive relief.
CONCLUSION
Based on the foregoing, it is
ORDERED that plaintiff's motions for a preliminary injunction are denied in accordance with the foregoing; and it is further
ORDERED that a remote preliminary conference shall be scheduled, and the parties and their counsel shall confer in advance of such conference regarding: (1) the use of mediation or other forms of alternative dispute resolution to bring about an early resolution of this action; and (2) a schedule for the expeditious completion of disclosure.
This constitutes the Decision & Order of the Court, the original of which is being uploaded to NYSCEF for entry by the Albany County Clerk. Upon such entry, counsel for defendant shall promptly serve notice of entry on all parties entitled to such notice.
Papers Considered:
NYSCEF Doc Nos. 1-9, 13, 18, 20-31, 33-43, 46-53.