Opinion
December 22, 1977
Appeal from an order of the Supreme Court at Special Term, entered August 6, 1975 in Albany County, which denied plaintiff's motion for a preliminary injunction pending a determination of the action for a permanent injunction. The defendant operates an auction market for the sale of horses. Plaintiff brought an action seeking judgment enjoining the defendant from conducting the sale of horses unless the horses have been tested for the disease of equine infectious anemia (E.I.A.) and have reacted negatively, or unless exempt from such tests pursuant to subdivision 6 of section 95-c Agric. Mkts. of the Agriculture and Markets Law and 1 NYCRR 64.8 and 64.9. The preliminary injunctive relief sought was properly denied. Plaintiff had the burden of establishing reasonable probability of success on the action and the existence of irreparable injury in the event an injunction did not issue. Plaintiff's clear right to relief and of immediate need was not established and injunctive relief may not be granted without a further development of the facts and the law upon a plenary trial (Smith v Robilotto, 25 A.D.2d 454). The relief sought could have been obtained long since, had the case been added to the Trial Calendar and actively pursued by the plaintiff. Order affirmed, with costs. Koreman, P.J., Greenblott, Main, Mikoll and Herlihy, JJ., concur.