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Alexandru v. Pappas

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


December 1, 2009

ADRIAN ALEXANDRU, APPELLANT,
v.
STEVE PAPPAS, ET AL., RESPONDENTS.

In action, inter alia, for specific performance of stipulations of settlement, the plaintiff appeals from an order of the Supreme Court, Kings County (Balter, J.), dated December 11, 2008, which denied his motion (a) for a preliminary injunction enjoining the defendants from taking any action to reduce or affect his ownership interest in the defendant Daily Mirror Associates and from requiring him to make any capital contributions to that defendant, based on the parties' stipulations dated August 14, 2008, and September 24, 2008, respectively, (b) to compel the defendants to specifically perform their obligations under those stipulations of settlement, and (c) to hold the defendants in contempt.

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.

PETER B. SKELOS, J.P., ANITA R. FLORIO, RUTH C. BALKIN & JOHN M. LEVENTHAL, JJ.

(Index No. 31916/08)

DECISION & ORDER

ORDERED that the order is modified, on the law, the facts, and in the exercise of discretion, by deleting the provision thereof denying that branch of the plaintiff's motion which was for a preliminary injunction enjoining the defendants from taking any action to reduce or affect his ownership interest in the defendant Daily Mirror Associates and from requiring him to make any capital contributions to that defendant, based on the parties' stipulations dated August 14, 2008, and September 24, 2008, respectively, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Kings County, for the fixing of an appropriate undertaking pursuant to CPLR 6312.

"The party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor" (Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839). The purpose of a preliminary injunction is to preserve the status quo and to prevent the dissipation of property, which might make a judgment ineffectual (see Rattner & Assoc. v Sears, Roebuck & Co., 294 AD2d 346). "The determination to grant or deny a preliminary injunction rests in the sound discretion of the Supreme Court" (Coinmach Corp. v Alley Pond Owners Corp., 25 AD3d 642).

In this case, the plaintiff made the requisite showing and therefore, it was an improvident exercise of discretion to deny his motion for a preliminary injunction (see Yemini v Goldberg, 60 AD3d 935). The plaintiff made a prima facie showing that he was likely to succeed on the merits of his cause of action for specific performance of the stipulations of settlement entered into on the record on August 14, 2008, and September 24, 2008, respectively, that enforcement of a capital call issued by the defendant Daily Mirror Associates against him would impair his rights under those stipulations, and that the equities lie with him, as he has performed his obligations under the stipulations.

However, to the extent that the plaintiff's motion sought to compel the defendants to specifically perform their obligations under the stipulations of settlement, which is the ultimate relief sought in the action, that branch of the motion was, in effect, for summary judgment, which procedurally could not be granted, as issue had yet to be joined (see CPLR 3212[a]). Thus, that branch of the motion was properly denied.

That branch of the motion which sought to hold the defendants in contempt of court for failure to comply with the stipulations of settlement was premature, and thus properly denied.

SKELOS, J.P., FLORIO, BALKIN and LEVENTHAL, JJ., concur.

20091201

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