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Rg & Rh, Inc. and Lg & Wh, Inc v. Schmidt's Auto Body & Glass

May 3, 2013

RG & RH, INC. AND LG & WH, INC., PLAINTIFFS-RESPONDENTS,
v.
SCHMIDT'S AUTO BODY & GLASS, INC., DEFENDANT-APPELLANT.
SCHMIDT'S AUTO BODY & GLASS, INC.,
THIRD-PARTY PLAINTIFF-APPELLANT, RUSSELL HANNY, RICHARD GREENAWALT, AUTO COLLISION & GLASS, INC., RICHARD R. GREENAWALT, AND JUANITA GREENAWALT-SLOBE, THIRD-PARTY DEFENDANTS-RESPONDENTS.



Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered January 4, 2012.

RG & RH, Inc. v Schmidt's Auto Body & Glass, Inc.

Released on May 3, 2013

Appellate Division, Fourth Department

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.

PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.

The order denied defendant-third-party plaintiff's motion for an injunction during the pendency of the underlying action.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Defendant-third-party plaintiff (defendant) appeals from an order denying its motion for a preliminary injunction prohibiting third-party defendants Auto Collision & Glass, Inc., Richard R. Greenawalt and Juanita Greenawalt-Slobe from engaging in any business activity that is similar to or in direct competition with defendant's business activity within a five-mile radius of 2200 Military Road in Niagara Falls during the pendency of this action. "Preliminary injunctive relief is a drastic remedy [that] is not routinely granted" (Marietta Corp. v Fairhurst, 301 AD2d 734, 736; see Peterson v Corbin, 275 AD2d 35, 37, appeal dismissed 95 NY2d 919). It is well settled that a party seeking a preliminary injunction "must establish, by clear and convincing evidence . . . , three separate elements: (1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in the moving party's favor' " (Destiny USA Holdings, LLC v Citigroup Global Mkts. Realty Corp., 69 AD3d 212, 216, quoting Doe v Axelrod, 73 NY2d 748, 750; see J.A. Preston Corp. v Fabrication Enters., 68 NY2d 397, 406). Moreover, "[a] motion for a preliminary injunction is addressed to the sound discretion of the trial court[,] and the decision of the trial court on such a motion will not be disturbed on appeal, unless there is a showing of an abuse of discretion" (Destiny USA Holdings, LLC, 69 AD3d at 216 [internal quotation marks omitted]; see Axelrod, 73 NY2d at 750). Here, we conclude that the court did not abuse its discretion in denying defendant's motion for a preliminary injunction (see generally Marcone APW, LLC v Servall Co., 85 AD3d 1693, 1695; Eastman Kodak Co. v Carmosino, 77 AD3d 1434, 1435).

Entered: May 3, 2013

Frances E. Cafarell Clerk of the Court

20130503

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