| Alexandru v Pappas |
| 2009 NY Slip Op 08978 [68 AD3d 690] |
| December 1, 2009 |
| Appellate Division, Second Department |
| Adrian Alexandru, Appellant, v Steve Pappas et al.,Respondents. |
—[*1]
In action, inter alia, for specific performance of stipulations of settlement, the plaintiffappeals 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 fromtaking any action to reduce or affect his ownership interest in the defendant Daily MirrorAssociates and from requiring him to make any capital contributions to that defendant, based onthe parties' stipulations dated August 14, 2008, and September 24, 2008, respectively, (b) tocompel the defendants to specifically perform their obligations under those stipulations ofsettlement, and (c) to hold the defendants in contempt.
Ordered that the order is modified, on the law, the facts, and in the exercise of discretion, bydeleting the provision thereof denying that branch of the plaintiff's motion which was for apreliminary injunction enjoining the defendants from taking any action to reduce or affect hisownership interest in the defendant Daily Mirror Associates and from requiring him to make anycapital 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 branchof the motion; as so modified, the order is affirmed, with costs to the plaintiff, and the matter isremitted to the Supreme Court, Kings County, for the fixing of an appropriate undertakingpursuant to CPLR 6312.
"The party seeking a preliminary injunction must demonstrate a probability of success on themerits, danger of irreparable injury in the absence of an injunction and a balance of equities in itsfavor" (Nobu Next Door, LLC v FineArts Hous., Inc., 4 NY3d 839, 840 [2005]). The purpose of a preliminary injunction isto preserve the status quo and to prevent the dissipation of property, which might make ajudgment ineffectual (see Rattner & Assoc. v Sears, Roebuck & Co., 294 AD2d 346[2002]). "The determination to grant or deny a preliminary injunction rests in the sounddiscretion of the Supreme Court" (Coinmach Corp. v Alley Pond Owners Corp., 25 AD3d 642, 643[2006]).
In this case, the plaintiff made the requisite showing and therefore, it was an improvidentexercise of discretion to deny his motion for a preliminary injunction (see Yemini v [*2]Goldberg, 60 AD3d 935 [2009]). The plaintiff made aprima facie showing that he was likely to succeed on the merits of his cause of action for specificperformance of the stipulations of settlement entered into on the record on August 14, 2008 andSeptember 24, 2008, respectively, that enforcement of a capital call issued by the defendantDaily Mirror Associates against him would impair his rights under those stipulations, and thatthe 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 tospecifically perform their obligations under the stipulations of settlement, which is the ultimaterelief 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 forfailure to comply with the stipulations of settlement was premature, and thus properly denied.Skelos, J.P., Florio, Balkin and Leventhal, JJ., concur.