Opinion
September 16, 1981
In an action, inter alia, to recover damages for breach of contract, and for specific performance, plaintiff appeals from an order of the Supreme Court, Nassau County (Burke, J.), dated August 26, 1981, which denied its motion for a preliminary injunction. Order reversed, without costs or disbursements, motion granted, and defendants are enjoined from interfering with plaintiff's exclusive right to sell food and drinks on Tuesdays and Saturdays at the flea markets at Belmont and Aqueduct Racetracks pending determination after trial. Plaintiff shall post a $25,000 undertaking with corporate surety (see CPLR 6312, subd [b]). Justice Eli Wager, as designated by the Administrative Judge of the Supreme Court, Nassau County, is directed to supervise discovery, which is to be completed within 10 days from entry of the order to be made hereon, and to proceed with the trial of this matter immediately upon completion of discovery. The undertaking shall be filed on or before 5:00 P.M. on Wednesday, September 23, 1981. During the past two years, plaintiff, Cut Corners Corporation, has enjoyed the exclusive right to sell food and drinks on Sundays at defendant Barterama Corporation's flea markets at Aqueduct and Belmont Racetracks, pursuant to a written contract, and on Tuesdays and Saturdays, pursuant to an alleged oral modification of the written agreement. Barterama now seeks to bar Cut Corners from participating on Tuesdays and Saturdays and Cut Corners seeks to enjoin Barterama from doing so. Under the circumstances of this case, a preliminary injunction is appropriate to maintain the status quo and to avoid irreparable harm to Cut Corners. As the written contract will expire in April, 1982, and the flea markets are scheduled to go indoors, without Cut Corners, in mid-October, an early trial is directed. Hopkins, J.P., Lazer, Mangano, Cohalan and Weinstein, JJ., concur.