Lehey v. Goldburt

• Decision Date: 01 December 2011
• Citation: 90 A.D.3d 410,2011 N.Y. Slip Op. 08670,933 N.Y.S.2d 281
• Parties: Joseph LEHEY, etc., Plaintiff–Respondent, v. Tim GOLDBURT, et al., Defendants–Appellants,David Perillo, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 08670

90 A.D.3d 410

933 N.Y.S.2d 281

Joseph LEHEY, etc., Plaintiff–Respondent,

v.Tim GOLDBURT, et al., Defendants–Appellants,David Perillo, et al., Defendants.

Supreme Court, Appellate Division, First Department, New York.

Dec. 1, 2011.

Smith Valliere PLLC, New York (Mark W. Smith of counsel), for appellants.

Jules A. Epstein, Garden City, for respondent.

TOM, J.P., ANDRIAS, CATTERSON, ABDUS–SALAAM, ROMÁN, JJ.

Order, Supreme Court, New York County (Charles Edward Ramos, J.), entered June 2, 2011, which, among other things, designated and installed plaintiff as manager of FSJ, LLC; removed Goldburt as manager of FSJ; directed defendants not to transfer any of FSJ's property, assets, inventory or funds, except as required in the ordinary course of business; and declared that the parties' operating agreement remains in full force and effect, except as set forth in the order, unanimously modified, on the law and the facts, to vacate the order except as to those portions that enjoined defendants from transferring any of FSJ's property, assets, inventory or funds, except as required in the ordinary course of business, and declared that the parties' operating agreement remains in full force and effect, and the matter remanded for a hearing on whether FSJ's assets are at risk of being materially injured or destroyed or whether plaintiff will be irreparably harmed in the absence of a provisional remedy, and to determine the appropriate provisional remedy, if any, and otherwise affirmed, without costs.

The decision to grant or deny provisional relief is ordinarily committed to the sound discretion of the court. However, the function of a provisional remedy is “not to determine the ultimate rights of the parties, but to maintain the status quo until there can be a full hearing on the merits” ( Residential Bd. of Mgrs. of Columbia Condominium v. Alden, 178 A.D.2d 121, 122, 576 N.Y.S.2d 859 [1991] ). Further, the issuance of a mandatory injunction is appropriate only when such extraordinary relief is essential to maintaining the status quo ( id.). “[W]here conflicting affidavits raise sharp issues of fact,” injunctive relief should not be granted ( id. at 123, 576 N.Y.S.2d 859).

Here, the parties submitted conflicting affidavits regarding the status of FSJ and its assets. Thus, it is not clear that plaintiff was entitled to any provisional remedy, let alone the extraordinary one granted here. Plaintiff established some likelihood of success on the merits by demonstrating the various expenditures that were made without his written consent and by raising issues regarding the ownership of the patents, trademarks and FSJ's inventory. However, he did not clearly establish that he would be irreparably harmed in the absence of a preliminary injunction or that FSJ's property was in danger of being...