Interoil LNG Holdings, Inc. v Merrill Lynch PNG LNG Corp.

Interoil LNG Holdings, Inc. v Merrill Lynch PNG LNG Corp. 2009 NY Slip Op 01522 [60 AD3d 403] March 3, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 6, 2009

Interoil LNG Holdings, Inc., et al., Appellants,
v
Merrill Lynch PNG LNG Corp., Respondent.

—[*1] Garvey Schubert Barer, New York (Andrew J. Goodman of counsel), for appellants.

Milbank, Tweed, Hadley & McCloy LLP, New York (Michael L. Hirschfeld of counsel), for respondent.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered November 12, 2008, which granted defendant's cross motion for a preliminary injunction in aid of arbitration, unanimously affirmed, with costs.

In addition to showing that the arbitration award could be rendered ineffectual, a party seeking an injunction in aid of arbitration must demonstrate the traditional factors for injunctive relief under CPLR article 63 (CPLR 7502 [c]; see SG Cowen Sec. Corp. v Messih, 224 F3d 79, 83-85 [2d Cir 2000] [construing CPLR 7502 (c) and CPLR 7501 and concluding that in addition to a showing that the arbitration award could be rendered ineffectual the traditional requirements for injunctive relief apply to a request under CPLR 7502 (c) for injunctive relief]). Plaintiff asserts that defendant failed to satisfy two of those elements—a likelihood of success on the merits, and irreparable injury.

Defendant has met this standard. As to the merits, defendant claims to have an enforceable agreement for a supply contract to purchase LNG from the parties' mutually owned company. While the price term in that agreement is not definite on its face, we find defendant has made a sufficient showing that the term can be supplied from public price indices and industry practice. Given the wording of the price provision and the parties' clear intent to enter into a supply/output contract, the contract is not too vague to be enforced (Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475, 483 [1989], cert denied 498 US 816 [1990]). Moreover, the loss of rights to purchase a commodity into the future (the term of the agreement is 20 years) would result in a loss which, at the least, would be difficult to quantify (Gundermann & Gundermann Ins. v Brassill, 46 AD3d 615, 617 [2007] [upholding finding of irreparable [*2]injury where claimed damages were "difficult to quantify"]). Accordingly, defendant made a sufficient showing of irreparable injury. Concur—Mazzarelli, J.P., Gonzalez, Sweeny, McGuire and DeGrasse, JJ.