Opinion
Argued November 30, 1999
December 27, 1999
In an action to recover damages for unfair competition and for injunctive relief, the defendants appeal from an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated March 15, 1999, which granted the plaintiffs' motion to preliminarily enjoin the defendant Ali Zangeneh from, inter alia, engaging in the practice of dentistry in competition with the plaintiff Dental Health Associates, and to enjoin the defendants, Ali Zangeneh, Brian Bovino, and Allen Zuch, from contacting patients of the plaintiff Dental Health Associates and from removing property of that plaintiff from the premises located at 375 Windsor Highway, New Windsor.
Alter Alter, New York, N.Y. (Ivan S. Alter of counsel), for appellants.
McLaughlin Stern, LLP, New York, N.Y. (Jon Paul Robbins of counsel), for respondents.
DAVID S. RITTER, J.P., WILLIAM D. FRIEDMANN, SANDRA J. FEUERSTEIN, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, and the plaintiffs' motion is denied.
"It is well settled that in order to prevail on a motion for a preliminary injunction, the movant must show, inter alia, that it is likely to succeed on the merits of the action (see, Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860 ; Emerald Enters. v. Chili Plaza Assocs., 237 A.D.2d 912 ; Key Drug Co. v. Luna Park Realty Assocs., 221 A.D.2d 598, 599 ). To sustain this burden, the movant must demonstrate a clear right to relief which is plain from the undisputed facts' (Family Affair Haircutters v. Detling, 110 A.D.2d 745, 747 ). Where the facts are in sharp dispute, a temporary injunction will not be granted (see, Jurlique v. Austral Biolab Pty., 187 A.D.2d 637 ;Sutton, DeLeeuw, Clark Darcy v. Beck, 155 A.D.2d 962 ; Family Affair Haircutters v. Detling, supra)" (Blueberries Gourmet v. Aris Realty Corp., 255 A.D.2d 348, 349-350 ; see also, Sumiko Enters. v. Town Realty Co., 259 A.D.2d 483 ).
In the instant case, the plaintiffs failed to establish the likelihood of success on the merits. It is not disputed that the plaintiffs withdrew a prior application seeking essentially the same injunctive relief after the parties reached an oral agreement settling their dispute, although this agreement was not placed on the record in open court. Several factual issues exist as to exactly what the parties agreed to, whether the defendant Ali Zangeneh violated the terms of the agreement, and whether the plaintiff Steven P. Stern knew of and agreed to certain actions taken by the defendants.
RITTER, J.P., FRIEDMANN, FEUERSTEIN, and SCHMIDT, JJ., concur.