| Liotta v Mattone |
| 2010 NY Slip Op 01932 [71 AD3d 741] |
| March 9, 2010 |
| Appellate Division, Second Department |
| John Liotta, Respondent, v Richard Mattone et al.,Appellants. |
—[*1]
In an action, inter alia, to recover damages for breach of contract, the defendants appeal froman order of the Supreme Court, Nassau County (Bucaria, J.), dated March 11, 2009, whichdenied their motion, in effect, to vacate a prior order dated July 23, 2008, granting the plaintiff'sunopposed motion for a preliminary injunction, and thereupon, to deny the plaintiff's motion fora preliminary injunction.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,and the defendants' motion, in effect, to vacate the order dated July 23, 2008, granting theplaintiff's unopposed motion for a preliminary injunction, and, upon vacatur, to deny theplaintiff's motion for a preliminary injunction, is granted.
Generally, a defendant seeking to vacate an order entered upon his or her default in opposinga motion must demonstrate both a reasonable excuse for the default and a meritorious defense(see CPLR 5015 [a] [1]; Political Mktg., Int'l, Inc. v Jaliman, 67 AD3d 661 [2009]; Montefiore Med. Ctr. v Hartford Acc. &Indem. Co., 37 AD3d 673 [2007]). Under the particular circumstances of this case, theSupreme Court improvidently exercised its discretion in denying that branch of the defendants'motion which was, in effect, to vacate the order dated July 23, 2008, granting the plaintiff'smotion for a preliminary injunction upon their default in opposing.
In addition, a party seeking the drastic remedy of a preliminary injunction has the burden ofdemonstrating, by clear and convincing evidence, (1) a likelihood of ultimate success on themerits, (2) the prospect of irreparable injury if the provisional relief is withheld, and (3) abalancing of the equities in the movant's favor (see Berkoski v Board of Trustees of Inc. Vil. of Southampton, 67 AD3d840 [2009]). Here, the plaintiff failed to satisfy his burden of demonstrating irreparableinjury if the preliminary injunction is not granted. Accordingly, the plaintiff's motion for apreliminary injunction should have been denied. Fisher, J.P., Angiolillo, Leventhal and Lott, JJ.,concur.