| Mar v Liquid Mgt. Partners, LLC |
| 2009 NY Slip Op 03874 [62 AD3d 762] |
| May 12, 2009 |
| Appellate Division, Second Department |
| Gary Mar et al., Respondents, v Liquid ManagementPartners, LLC, et al., Appellants. |
—[*1] Olonoff Asen & Serebro, LLP, New York, N.Y. (Alison I. Blaine and Michael Ira Asen ofcounsel), for respondents.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal froman order of the Supreme Court, Queens County (Grays, J.), dated October 1, 2007, which, upon adecision of the same court dated June 20, 2007, granted the plaintiffs' motion for a preliminaryinjunction prohibiting them from competing with the plaintiffs by distributing certain beverageproducts in specified territories, and compelling them to sell such beverage products to theplaintiffs.
Ordered that the order is reversed, on the law, with costs, and the plaintiffs' motion for apreliminary injunction prohibiting the defendants from competing with the plaintiffs bydistributing certain beverage products in specified territories, and compelling the defendants tosell such beverage products to the plaintiffs is denied.
The plaintiff Arctic Beverage Distribution, LLC (hereinafter Arctic), is in the business ofdistributing Liquid Ice Energy Drink, a product manufactured and supplied by the defendantLiquid Management Partners, LLC (hereinafter LMP). According to the plaintiffs, Arctic wasformed as the successor corporation to nonparty Specialty Beverage, LLC (hereinafterSpecialty), and succeeded to Specialty's exclusive right to distribute Liquid Ice Energy Drink ina specified territory, which arose from a distribution agreement between LMP's predecessorcorporation and Specialty. The plaintiffs claim that the defendants breached the distributionagreement by distributing the product within the specified territory, and by refusing to sell theproduct to them. The plaintiffs commenced the instant action, seeking, among other things,damages for breach of contract, and moved for a preliminary injunction prohibiting thedefendants from distributing the product within [*2]the plaintiffs'exclusive territory and compelling the defendants to sell them the product. The Supreme Courtgranted the motion, and the defendants appeal.
Where the plaintiffs can be fully compensated by a monetary award, an injunction will notissue because no irreparable harm will be sustained in the absence of such relief (see Dana Distribs., Inc. v Crown Imports,LLC, 48 AD3d 613, 613-614 [2008]; 1659 Ralph Ave. Laundromat Corp. v BenDavid Enters., 307 AD2d 288, 288-289 [2003]; Price Paper & Twine Co. v Miller,182 AD2d 748, 750 [1992]). The plaintiffs argue on appeal that they demonstrated a risk of"injury for which monetary damages will be inadequate" by showing that the failure to grant apreliminary injunction will likely result in the dissolution of their business. However, in theircomplaint, they seek nothing more than monetary damages. Accordingly, the plaintiffs haveeffectively acknowledged that they will be fully compensated by obtaining such damages, andthus are not entitled to a preliminary injunction (see Lawrence H. Morse, Inc. v Anson,185 AD2d 505, 506 [1992]; see also Credit Index v RiskWise Intl., 282 AD2d 246,247 [2001]; SportsChannel Am. Assoc. v National Hockey League, 186 AD2d 417, 418[1992]; Haulage Enters. Corp. v Hempstead Resources Recovery Corp., 74 AD2d 863,864 [1980]).
Moreover, the plaintiffs failed to explain in what manner, or by what mechanism, it isclaimed that Arctic became the successor to Specialty, and thus, succeeded to Specialty's rightsunder the distribution agreement. Nor does the evidence submitted by the plaintiffs clarify thegrounds for the claimed succession. As such, the plaintiffs failed to meet their burden ofdemonstrating a likelihood of success on the merits of their complaint (see generally AetnaIns. Co. v Capasso, 75 NY2d 860, 862 [1990]; Automated Waste Disposal, Inc. v Mid-Hudson Waste, Inc., 50 AD3d1072, 1073 [2008]). Mastro, J.P., Skelos, Santucci and Hall, JJ., concur.