Summary
determining whether to grant or deny a provisional injunctive relief requires the court to weigh a variety of factors
Summary of this case from Overtime Partners, Inc. v. 320 W. 31st Assocs., LLCOpinion
106 SSM 7.
Decided April 5, 2005.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered January 8, 2004. The Appellate Division order, insofar as appealed from, (1) modified, on the law, orders of the Supreme Court, New York County (Richard Braun, J.), which had granted injunctive and Yellowstone relief to Nobu Corp., tolling its time to exercise the renewal option in its lease on condition that it post a $10,000 bond, and denied defendant's cross motion to compel plaintiffs to replace an exhaust stack, and (2) otherwise affirmed. The modification consisted of striking the bond and vacating the preliminary injunction. The following question was certified by the Appellate Division: "Was the order of this Court, which modified the orders of Supreme Court, properly made?"
Nobu Next Door, LLC v. Fine Arts Hous., Inc., 3 AD3d 335, affirmed.
Wagner Davis, P.C., New York City ( Bonnie Reid Berkow of counsel), for appellant.
Borah, Goldstein, Altschuler, Schwartz Nahins, P.C., New York City ( Jeffrey R. Metz of counsel), for respondent.
Before: Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur in memorandum.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division, insofar as appealed from, should be affirmed, with costs; the certified question should be answered in the affirmative.
The decision to grant or deny provisional relief, which requires the court to weigh a variety of factors, is a matter ordinarily committed to the sound discretion of the lower courts. Our power to review such decisions is thus limited to determining whether the lower courts' discretionary powers were exceeded or, as a matter of law, abused ( Doe v. Axelrod, 73 NY2d 748, 750). The party seeking a 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 ( see CPLR 6301; see generally Doe, 73 NY2d at 750).
Here, in addition to a Yellowstone injunction, plaintiff Nobu Corp. also sought a preliminary injunction tolling its time to exercise the renewal option in its lease ( see Waldbaum, Inc. v. Fifth Ave. of Long Is. Realty Assoc., 85 NY2d 600; First Natl. Stores v. Yellowstone Shopping Ctr., 21 NY2d 630). The Appellate Division considered appropriate equitable factors in determining that the balance of the equities did not tip in Nobu Corp.'s favor. Accordingly, that Court did not exceed or abuse its equitable powers in vacating the preliminary injunction.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals ( 22 NYCRR 500.4), order, insofar as appealed from, affirmed, etc.