Weissmanv.Kubasek

Appellate Division of the Supreme Court of New York, Second DepartmentAug 26, 1985
112 A.D.2d 1086 (N.Y. App. Div. 1985)

August 26, 1985

Appeal from the Supreme Court, Westchester County (Walsh, J.).


Judgment modified, in the exercise of discretion, by adding to the third line of the first decretal paragraph thereof, before the word "restrained", the word "preliminarily". As so modified, judgment affirmed insofar as appealed from, without costs or disbursements, and matter remitted to the Supreme Court, Westchester County, for further proceedings.

A trial court has discretion to grant a preliminary injunction, and the granting of such relief will not be disturbed absent an abuse of discretion ( Picotte Realty v. Gallery of Homes, 66 A.D.2d 978; Niagara Recycling v. Town of Niagara, 83 A.D.2d 316). An application for preliminary injunctive relief requires a showing that (1) the movant is likely to ultimately succeed on the merits, (2) the movant will suffer irreparable injury absent granting of the preliminary injunction, and (3) a balancing of the equities favors granting of the preliminary injunction (7A Weinstein-Korn-Miller, N Y Civ Prac ¶ 6301.13a). A prima facie showing of a reasonable probability of success is sufficient; actual proof of the petitioners' claims should be left to a full hearing on the merits ( Tucker v. Toia, 54 A.D.2d 322, 326). At bar, petitioners made a sufficient showing to warrant the granting of preliminary injunctive relief. However, the judgment appealed from purports to grant permanent injunctive relief, in that the word "preliminary" does not appear therein. It is clear from this record that preliminary relief was intended; in any event, it does not appear that the complex issues involved can be finally resolved on the basis of the papers submitted. Accordingly, we modify the judgment so as to grant only preliminary injunctive relief, and remit the matter to the Supreme Court, Westchester County, for further proceedings. We have examined appellants' other contentions, and find them unpersuasive. Brown, J.P., O'Connor, Weinstein, Kunzeman and Kooper, JJ., concur.