Digestive Liver Disease, P.C. v Patel |
2005 NY Slip Op 03632 [18 AD3d 423] |
May 2, 2005 |
Appellate Division, Second Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
Digestive Liver Disease, P.C., Respondent, v Sunil Patel, Respondent. |
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In an action to enforce a restrictive covenant contained in an employment agreement, the plaintiff appeals from an order of the Supreme Court, Richmond County (Lebowitz, J.), dated September 26, 2003, denying its motion for a preliminary injunction.
Ordered that the order is affirmed, with costs.
A preliminary injunction will not be granted unless the moving party first establishes (1) a likelihood of ultimate success on the merits, (2) that irreparable injury will occur absent a preliminary injunction, and (3) a balancing of the equities favors the movant (see CPLR 6301; W.T. Grant Co. v Srogi, 52 NY2d 496 [1981]). Where the facts are sharply disputed, those elements cannot be established and the motion for a preliminary injunction will be denied (see Morley Distribs. v Merinberg, 216 AD2d 544 [1995]; Price Paper & Twine Co. v Miller, 182 AD2d 748 [1992]; Family Affair Haircutters v Detling, 110 AD2d 745, 747 [1985]).
Here, the facts surrounding the termination of the defendant's employment from the plaintiff corporation are sharply disputed. As a result, the court could not determine that a balancing [*2]of the equities favors the plaintiff. Thus, the preliminary injunction was properly denied. Adams, J.P., Santucci, Goldstein and Lifson, JJ., concur.