Holdsworth v. Doherty

• Decision Date: 27 September 1996
• Citation: 231 A.D.2d 930,647 N.Y.S.2d 633
• Parties: Garner S. HOLDSWORTH and Chemgard Systems, Inc., Respondents, v. Richard DOHERTY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 633

647 N.Y.S.2d 633

231 A.D.2d 930

Garner S. HOLDSWORTH and Chemgard Systems, Inc., Respondents, v. Richard DOHERTY, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Sept. 27, 1996.

Freid and Klawon by Adam Conners, Williamsville, for Appellant.

Friedman & Ranzenhofer, P.C. by Elizabeth DiPirro, Akron, for Respondents.

Before DENMAN, P.J., and GREEN, WESLEY, BALIO and DAVIS, JJ.

MEMORANDUM.

Supreme Court erred in granting plaintiffs' motion for a preliminary injunction. Plaintiffs failed to meet their burden of demonstrating, by competent proof (see, Faberge Intl. v. Di Pino, 109 A.D.2d 235, 240, 491 N.Y.S.2d 345), their likelihood of success on the merits, irreparable injury in the absence of injunctive relief and that the equities weigh in their favor (see, Sutton, DeLeeuw, Clark & Darcy v. Beck, 155 A.D.2d 962, 547 N.Y.S.2d 773). "A party moving for a preliminary injunction need not establish a certainty of success on the merits (see, Parkmed Co. v. Pro-Life Counselling, 91 A.D.2d 551, 553, 457 N.Y.S.2d 27; Tucker v. Toia, 54 A.D.2d 322, 326, 388 N.Y.S.2d 475), but when the facts necessary to establish the cause of action are, as here, in sharp dispute, a preliminary injunction should not issue" (Sutton, DeLeeuw, Clark & Darcy v Beck, supra, at 963, 547 N.Y.S.2d 773). Further, plaintiffs made no showing that defendant engaged in or threatened to engage in the conduct plaintiffs sought to enjoin (see, Matter of O'Brien, 174 A.D.2d 982, 572 N.Y.S.2d 145). Plaintiffs submitted no proof that defendant, following the termination of his relationship with plaintiffs, represented himself as an agent, employee, officer, director or servant of plaintiff Chemgard Systems, Inc. (CSI), attempted to collect any commissions owed to CSI or made any purchases or commitments on CSI's behalf. "Mere apprehensions do not suffice; the injunction will issue only upon a showing that the defendant's wrongful acts are occurring or are threatened and reasonably likely to occur" (Siegel, N.Y. Prac § 328, at 467 [2d ed]; see, CPLR 6301). Finally, plaintiffs made no evidentiary showing to support the restraint on defendant's right to communicate with manufacturers represented by CSI (see, Headquarters Buick-Nissan v. Michael Oldsmobile, 149 A.D.2d 302, 304, 539 N.Y.S.2d 355; Catalogue Serv. of Westchester v. Henry, 107 A.D.2d 783, 784, 484 N.Y.S.2d 615).

Order unanimously reversed on the law with costs and motion denied.