Nelson v. Jannace

Decision Date09 March 1998
Citation248 A.D.2d 448,668 N.Y.S.2d 936
Parties1998 N.Y. Slip Op. 2021 NELSON, L.P., Respondent, v. Joseph JANNACE, et al., Appellants.
CourtNew York Supreme Court — Appellate Division

Byrne Maher, LLP, Mineola (Cathryn A. Byrne and Kathleen Crean Maher, of counsel), for appellants.

Charles E. Holster III, Mineola, for respondent.

In an action, inter alia, for specific performance of a real estate contract and option agreement, the defendants appeal from an order of the Supreme Court, Nassau County (Adams, J.), entered October 17, 1996, which granted the plaintiff's motion for a preliminary injunction and tolled the option period, and denied their cross motion, inter alia, to sever the action against the defendant Joseph Jannace from the action against the defendant Jane Woods.

ORDERED that the order is affirmed, with costs.

The decision to grant a preliminary injunction is a matter ordinarily committed to the sound discretion of the court hearing the motion (see, Doe v. Axelrod, 73 N.Y.2d 748, 750, 536 N.Y.S.2d 44, 532 N.E.2d 1272). To obtain a preliminary injunction a movant must demonstrate (1) a likelihood of ultimate success on the merits; (2) danger of irreparable harm unless the injunction is granted; and (3) a balance of the equities in its favor (see, Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 862, 552 N.Y.S.2d 918, 552 N.E.2d 166; Doe v. Axelrod, supra, at 750, 536 N.Y.S.2d 44, 532 N.E.2d 1272; J. A. Preston Corp. v. Fabrication Enters., 68 N.Y.2d 397, 406, 509 N.Y.S.2d 520, 502 N.E.2d 197). Viewed in this framework, it cannot be said that the Supreme Court's decision granting the plaintiff's motion for a preliminary injunction was an improvident exercise of discretion.

Nor was the court's denial of that branch of the defendants' cross motion which was to sever the action into two actions an improvident exercise of discretion (see, Shanley v. Callanan Indus., 54 N.Y.2d 52, 444 N.Y.S.2d 585, 429 N.E.2d 104; County of Chenango Indus. Dev. Agency v. Lockwood Greene Engrs., 111 A.D.2d 508, 488 N.Y.S.2d 890).

We have reviewed the defendants' remaining contentions and find them to be without merit.

MANGANO, P.J., and BRACKEN, MILLER and KRAUSMAN, JJ., concur.

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6 cases
  • AEP Resources Service Co. v. Long Island Power Authority
    • United States
    • New York Supreme Court
    • February 1, 1999
    ...(2) danger of irreparable harm unless the injunction is granted, and (3) a balance of the equities in its favor" (see, Nelson v. Jannace, 248 A.D.2d 448, 668 N.Y.S.2d 936; Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 862, 552 N.Y.S.2d 918, 552 N.E.2d LIKELIHOOD OF ULTIMATE SUCCESS GENERAL MUNI......
  • 159 Smith, LLC v. Boreum Hill Prop. Holdings, LLC
    • United States
    • New York Supreme Court — Appellate Division
    • February 10, 2021
    ...injunction is a matter ordinarily committed to the sound discretion of the court hearing the motion" ( Nelson, L.P. v. Jannace, 248 A.D.2d 448, 448–449, 668 N.Y.S.2d 936 ; see Doe v. Axelrod, 73 N.Y.2d 748, 750, 536 N.Y.S.2d 44, 532 N.E.2d 1272 ; Automated Waste Disposal, Inc. v Mid–Hudson ......
  • Sharma v. Trejos
    • United States
    • New York Supreme Court
    • May 16, 2012
    ...61 A.D.3d 630, 630 [2009];Automated Waste Disposal, Inc. v. Mid–Hudson Waste, Inc., 50 A.D.3d 1072, 1073 [2008];Nelson, L.P. v. Jannace, 248 A.D.2d 448, 448–449 [1998].) In order to demonstrate entitlement to a preliminary injunction, the movant must establish (1) a probability of success o......
  • Sumiko Enterprises, Inc. v. Town Realty Co., L.L.C.
    • United States
    • New York Supreme Court — Appellate Division
    • March 1, 1999
    ...Ins. Co. v. Capasso, 75 N.Y.2d 860, 862, 552 N.Y.S.2d 918, 552 N.E.2d 166; Sachdev v. Metro Resources, Inc., supra; Nelson, L.P. v. Jannace, 248 A.D.2d 448, 668 N.Y.S.2d 936). To sustain its burden of demonstrating a likelihood of success on the merits, the movant must demonstrate a clear r......
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