| Family-Friendly Media, Inc. v Recorder Tel. Network |
| 2010 NY Slip Op 04735 [74 AD3d 738] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Family-Friendly Media, Inc., Appellant, v RecorderTelevision Network, Doing Business as AAJ TV, Respondent. |
—[*1] Friedman Harfenist Kraut & Perlstein, LLP, Lake Success, N.Y. (Steven J. Harfenist ofcounsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, aslimited by its brief, from so much of an order of the Supreme Court, Queens County (Sampson,J.), dated June 3, 2009, as denied that branch of its motion which was to dismiss the defendant'saffirmative defenses pursuant to CPLR 3211 (b), denied as premature, without prejudice torenew, that branch of its motion which was for summary judgment on the complaint, and deniedthat branch of its motion which was, in the alternative, for a preliminary injunction.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied that branch of the plaintiff's motion which was todismiss the defendant's affirmative defenses pursuant to CPLR 3211 (b). "A party may move forjudgment dismissing one or more defenses, on the ground that a defense is not stated or has nomerit" (CPLR 3211 [b]; see Greco vChristoffersen, 70 AD3d 769, 771 [2010]; Butler v Catinella, 58 AD3d 145, 147-148 [2008]). "Upon amotion to dismiss a defense, the defendant is entitled to the benefit of every reasonableintendment of its pleading, which is to be liberally construed. If there is any doubt as to theavailability of a defense, it should not be dismissed" (Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743 [2008];see Amerada Hess Corp. v Town ofSouthold, 39 AD3d 442 [2007]; Warwick v Cruz, 270 AD2d 255 [2000]).Applying these standards, the plaintiff failed to meet its burden of demonstrating that thedefendant's affirmative defenses "were without merit as a matter of law" (Vita v New York Waste Servs., LLC,34 AD3d 559, 559 [2006]; see Butler v Catinella, 58 AD3d at 148).
CPLR 3212 (f) permits a party opposing summary judgment to obtain further discoverywhen it appears that facts supporting the position of the opposing party exist but cannot be stated(see Aurora Loan Servs., LLC vLaMattina & Assoc., Inc., 59 AD3d 578 [2009]; Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636,637 [2006]). Under the circumstances of this case, the Supreme Court properly denied thatbranch of the plaintiff's motion which was for summary judgment on the complaint as premature,without prejudice to renew (see Matterof Fasciglione, 73 AD3d 769 [2010]; Baron v Incorporated Vil. of Freeport, 143AD2d [*2]792, 792-793 [1988]).
A party moving for a preliminary injunction "must demonstrate by clear and convincingevidence '(1) a likelihood of ultimate success on the merits, (2) irreparable injury absent thegranting of the preliminary injunction, and (3) that a balancing of equities favors the movant'sposition' " (EdCia Corp. vMcCormack, 44 AD3d 991, 993 [2007], quoting Apa Sec., Inc. v Apa, 37 AD3d 502, 503 [2007]; see W.T.Grant Co. v Srogi, 52 NY2d 496, 517 [1981]). The movant must show that the irreparableharm is "imminent, not remote or speculative" (Golden v Steam Heat, 216 AD2d 440,442 [1995]). Moreover, "[e]conomic loss, which is compensable by money damages, does notconstitute irreparable harm" (EdCia Corp. v McCormack, 44 AD3d at 994). The decisionto grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court(see Glorious Temple Church of God inChrist v Dean Holding Corp., 35 AD3d 806, 807 [2006]).
Here, the plaintiff made only conclusory allegations and failed to point to any imminent andnon-speculative harm that would befall it in the absence of a preliminary injunction (seeGolden v Steam Heat, 216 AD2d at 442). Moreover, it failed to demonstrate that any harm itwould suffer would not be compensable by money damages (see EdCia Corp. vMcCormack, 44 AD3d at 994). Accordingly, the Supreme Court providently exercised itsdiscretion in denying that branch of the plaintiff's motion which was for a preliminary injunction.
In light of the foregoing, we need not reach the plaintiff's remaining contentions. Rivera,J.P., Florio, Angiolillo and Austin, JJ., concur.