Opinion
October 13, 1992
Appeal from the Supreme Court, New York County (Shirley Fingerhood, J.).
SportsChannel, a nationwide cable television programming service, seeks to enjoin the NHL from breaching paragraph 12, the alleged "right of first refusal" provision of a broadcast letter agreement they entered into on October 1, 1991, pursuant to which SportsChannel had broadcast NHL games during the 1991-1992 hockey season, by failing to provide SportsChannel with an appropriate renewal offer for a broadcast agreement for the 1992-1993 hockey season and by entering into a separate agreement, dated September 2, 1992, with ESPN for the right to broadcast NHL games in the 1992-1993 and subsequent seasons.
The IAS Court did not abuse its discretion in denying SportsChannel's motion for a preliminary injunction against the NHL's performance of its agreement with ESPN.
SportsChannel has failed to demonstrate that it is likely to succeed on the merits, the terms of paragraph 12 being too imprecise and ambiguous to warrant that conclusion at this juncture. Indeed, SportsChannel itself offers several conflicting interpretations of its alleged right of first refusal. Injunctive relief is inappropriate when sought upon contractual language that leaves the rights of the parties open to doubt and uncertainty (Gulf W. Corp. v New York Times Co., 81 A.D.2d 772, 773; Xerox Corp. v Neises, 31 A.D.2d 195, 198).
Nor does SportsChannel show irreparable harm. Damages compensable in money and capable of calculation, albeit with some difficulty, are not irreparable (Van Wagner Adv. Corp. v S M Enters., 67 N.Y.2d 186; Matter of J.O.M. Corp. v Department of Health, 173 A.D.2d 153, 154).
Injunctive relief is also inappropriate inasmuch as SportsChannel concedes that the injunction would have the effect of granting it the ultimate relief it seeks. In effect, SportsChannel is improperly seeking a decree of specific performance in the guise of an injunction pendente lite (Xerox Corp. v Neises, supra, at 197; Allied-Crossroads Nuclear Corp. v Atcor, Inc., 25 A.D.2d 643, 644).
Finally, the IAS Court, in denying injunctive relief, properly considered the interests of the NHL fans who would be deprived of their right to watch the nationally televised hockey games if the NHL were forced to blackout its games for all or part of the 1992-1993 season (see, Pocket Books v Dell Publ. Co., 49 Misc.2d 252, 256), and correctly ruled that SportsChannel's laches in not seeking the injunction until broadcast plans were required to be finalized, less than a month before the scheduled October 6, 1992 commencement of the NHL 1992-1993 regular season, instead of months earlier when it became aware of the NHL/ESPN negotiations, weighed against SportsChannel on a balancing of the equities (Schulwolf v Cerro Corp., 86 Misc.2d 292, 299; Estate of Hemingway v Random House, 49 Misc.2d 726, affd 25 A.D.2d 719).
Concur — Ellerin, J.P., Wallach, Ross, Kassal and Rubin, JJ.