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Omakaze Sushi Restaurant, Inc. v. Lee

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT


December 2, 2008

OMAKAZE SUSHI RESTAURANT, INC., PLAINTIFF/ COUNTERCLAIM DEFENDANT-RESPONDENT,
v.
NGAN KAM LEE, ET AL., DEFENDANTS/COUNTERCLAIM PLAINTIFFS-APPELLANTS; CUI XIANG FONG, ET AL., COUNTERCLAIM DEFENDANTS-RESPONDENTS.

In an action, inter alia, to recover damages for defamation, the defendants/counterclaim plaintiffs Ngan Kam Lee and Nga Goon Chiu appeal from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated December 3, 2007, which denied their motion for a preliminary injunction enjoining the plaintiff/counterclaim defendant from performing any construction of a structure upon the subject premises and for an injunction pursuant to RPAPL 871 directing the plaintiff/counterclaim defendant and the counterclaim defendants Cui Xiang Fong, Juan Huang, Kwok Choi Chen, and BCA Construction, LLC, to remove an encroaching foundation wall.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

DAVID S. RITTER, J.P., ANITA R. FLORIO, HOWARD MILLER and EDWARD D. CARNI, JJ.

(Index No. 14145/07)

DECISION & ORDER

ORDERED that the order is affirmed, with costs to the plaintiff/counterclaim defendant-respondent.

The Supreme Court providently exercised its discretion in denying the motion of the defendants/counterclaim plaintiffs (hereinafter the appellants) for a preliminary injunction to enjoin the plaintiff/counterclaim defendant from performing any construction or renovation work upon the subject premises.

A party seeking the drastic remedy of a preliminary injunction must establish a clear right to that relief under the law and the undisputed facts (see Gagnon Bus Co., Inc. v Vallo Transp., Ltd., 13 AD3d 334). The burden of proof is on the movant to demonstrate a likelihood of success on the merits, the prospect of irreparable injury if the relief is withheld, and a balancing of the equities in the movant's favor (see Doe v Axelrod, 73 NY2d 748).

Here, the facts are in such sharp dispute that it cannot be said that the appellants established a clear right to preliminary injunctive relief (see Matter of Advanced Digital Sec. Solutions, Inc. v Samsung Techwin Co., Ltd., 53 AD3d 612, 613; Matter of Related Props., Inc. v Town Bd. of Town/Vil. of Harrison, 22 AD3d 587, 590).

The appellants' remaining contentions are without merit.

RITTER, J.P., FLORIO, MILLER and CARNI, JJ., concur.

20081202

© 1992-2008 VersusLaw Inc.



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