Sprung v Sprung

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Sprung v Sprung 2012 NY Slip Op 30453(U) February 7, 2012 Sup Ct, Nassau County Docket Number: 13684-11 Judge: Timothy S. Driscoll Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT- STATE OF NEW YORK SHORT FORM ORDER Present: HON. TIMOTHY S. DRISCOLL Justice Supreme Court ------------------------------------------------------------------- x TRIAL/IAS PART: 16 HERMAN SPRUNG, SPRUNG REALTY NASSAU COUNTY CORPORATION, GARSTEVE REALTY CORPORATION, SUFFOLK GRANITE MANUFACTURING CORPORATION, and BELLA Index No: 13684Motion Seq. No. REALTY ASSOCIATES, LLC, Submission Date: 1/23/12 Plaintiffs, - against - ADAM SPRUNG, Defendant. ------------------------------------------------------------------- x The following papers have been read on this Order to Show Cause Order to Show Cause, Affidavit in Support and Exhibits.................. Memorandum of Law in Support............................................. ........... ..... Affidavit in Op positio n. .......... ... Memorandum of Law in Opposition................................................n...... This matter is before the Cour for decision on the Order to Show Cause fied by Plaintiffs Herman Sprung (" Herman ), Sprug Realty Corporation (" Sprug Realty" ), Garsteve Realty Corporation (" Garsteve ), Suffolk Granite Manufacturing Corporation (" Suffolk Granite ) and Bella Realty Associate , LLC (" Bella ) (collectively " Plaintiffs ) on September 22 , 2011. The matter was the subject of oral argument before the Cour on October 20 , 2011. Pursuant to an Order of the Court dated November 14 2011 (" Prior Order the Court directed that this matter would be the subject of additional argument before the Court on the limited issue of the validity of the New York and Florida Powers of Attorney on which [* 2] Plaintiffs rely in support of their claim that Steven and Pearl Sprung are currently in charge of the Plaintiff companies The Court conducted that additional oral argument and the motion was submitted on Januar 23 , 20l2. In the Prior Order , the Cour also directed that , pending further cour order , the stipulation executed by the parties and so-ordered by the Court on September 22 2011 (" Stipulation ) shall remain in effect. For the reasons set forth below , the Court denies Plaintiffs ' Order to Show Cause in its entirety and vacates the Stipulation. The Court , however , hereby directs all paries not to discard destroy; conceal or remove any documents , electronic or otherwise , or other business materials belonging to the Businesses as that term is defined in the Stipulation , pending fuher cour order. BACKGROUND A. Relief Sought Plaintiffs move for an Order, pursuant to CPLR 6311 , 1) enjoining Defendant Adam Spring (" Adam " or " Defendant" ), directly or indirectly, from a) preventing or interfering with Steven Sprung (" Steven ) and Pearl Sprug s (" Pearl' ) duties and rights as the offcers and directors of Garsteve , Suffolk Granite , and Steven as the manager of Bella (collectively Businesses ); b) holding himself out as authorized to perform any services or act in any way on behalf of the Businesses; c) interfering with the directive of the Board of Directors of Sprug Realty, Garsteve , and Suffolk Granite or the manager of Bella; d) interfering with Steven and Pearl' s access to the Businesses ' books and records , valuable papers and other materials; e) continuing as a signatory on the ban accounts of the Businesses; f) having any further involvement in the operation of the Businesses and any fuher access to the corporate documents , finances , books and records and corporate meetings of the Businesses; g) discarding, destroying, concealing or removing, any documents , electronic data , information and other material taken , gathered , obtained or misappropriated from the Businesses; and 2) directing Defendant to turn over to the Plaintiffs , by and through Steven , all originals and copies of the Businesses ' customer information and lists , records , computers , ban statements , books contracts , agreements , and other documents and data pertaining to the Businesses. Defendant opposes Plaintiffs ' application. On September 22 , 2011 , the Cour ordered that , pending the hearing and determination of [* 3] Plaintiffs ' Order to Show Cause , and until further order of the Court , the parties shall comply with the Stipulation. The Stipulation provides inter alia that Defendant 1) wil not hold himself out as authorized to perform any services or act in any way on behalf of the Businesses , except that Defendant can , on behalf of Suffolk Granite , pay employees , pay vendors , and place and fill orders in the normal course of business; 2) wil to himself or any of his agents; 3) wil not write any checks on behalf of forward to Steven and Pearl , the Businesses on a daily basis , any checks to be written on behalf of the Businesses for Steven or Pearl' s written pre-approval which shall not be unreasonably withheld , except as provided in paragraph 1 , and checks on behalf of Suffolk Granite shall be provided weekly to Steven and Pearl; and 4) wil not conduct any business activities on behalf of the Businesses outside of the normal course of business. The Stipulation also obligates Defendant to provide certain records , not to discard or destroy certain records belonging to the Businesses , and not to open or close any ban accounts established in the name of the Businesses. B. The Paries ' The paries ' History history, including the allegations in the Complaint and the substance of the affidavits in opposition and support , the paries ' positions and relevant legal principles are set forth in detail in the Prior Order. The Cour incorporates the Prior Order herein by reference as if set forth in full. C. The Paries ' Positions The Court incorporates the Prior Order by reference. RULING OF THE COURT Preliminar Injunction Standards A preliminar injunction is a drastic remedy and wil only be granted if the movant establishes a clear right to it under the law and upon the relevant facts set forth in the moving papers. , v. Wiliam M Blake Agency, Inc. Corbin 275 AD. 2d 35 v. Leon 283 AD.2d 423 , 424 (2d Dept. 2001); Peterson 36 (2d Dept. 2000). Injunctive relief wil lie where a movant demonstrates a likelihood of success on the merits , a danger of irreparable harm unless the injunction is granted and a balance of the equities in his or her favor. 75 N. Y.2d 860 (1990); WT Grant Co. v. Srogi 52 N. Y.2d 496 Aetna Ins. Co. 517 (198l); v. Merscorp, Inc. Capasso [* 4] Romaine 295 AD.2d 43l (2d Dept. 2002); Neos v. 29l AD. 2d 434 (2d Dept. 2002). Lacey, The decision whether to grant a preliminary injunction rests in the sound discretion of the Supreme Court. Doe v. Axelrod 73 N. Y.2d Mid-Hudson Waste , Inc. 50 A. 748 , 750 (1988); 3d l073 (2d Dept. 2008); Automated Waste Disposal, Inc. v. City of Long Beach American Capital, LLC 40 AD. 3d 902 , 903 (2d Dept. 2007); Ruiz v. Sterling 26 AD.3d 485 Meloney, (2d Dept. 2006). Proof of a likelihood of success on the merits requires the movant to demonstrate a clear right to relief which is plain from the undisputed facts. Town/Vilage of Harrison 22 A. 396 (2d Dept. 2007); 2004). Thus , Gagnon Bus Co., Inc. Related Properties, 3d 587 (2d Dept. 2005); Abinanti Inc. Town Bd. of Pascale 4l AD.3d 395 Vallo Transp. Ltd. 13 AD. 3d 334 , 335 (2d Dept. while the existence of issues of fact alone wil not justify denial of a motion for a preliminar injunction , the motion should not be granted where there are issues that subvert the plaintiff s likelihood of success on the merits to such a degree that it canot be said that the plaintiff established a clear right to relief. Techwin Co., Ltd. 53 AD. 3d 612 (2d Dept. 2008), quoting 327 328 (2d Dept. 2003); B. see also Samsung Advanced Digital Sec, Solutions, Inc. Co. v Grifn 1 AD. Milbrandt CPLR ~ 6312(c). Application of these Principles to the Instant Action The Court denies Plaintiffs ' Order to Show Cause in its entirety based on the Court' conclusion that Plaintiffs have not demonstrated a likelihood of success on the merits. As outlined in the Prior Order , and amplified at the oral argument before the Court, there exist significant questions regarding the validity of the powers of attorney on which Plaintiffs rely in support of their contention that Steven and Pearl Sprung are currently in charge of the Plaintiff companIes. The Court denies Plaintiffs ' Order to Show Cause in its entirety and vacates the Stipulation. The Court , however , hereby directs all paries not to discard , destroy, conceal or remove any documents , electronic or otherwise , or other business materials belonging to the Businesses as that term is defined in the Stipulation , pending fuher cour order. [* 5] All matters not decided herein are hereby denied. This constitutes the decision and order of the Court. COUhsel for the paries shall appear before the Cour on Februar 27 2012 at 9:30 a. rather than March 23 2012 as previously directed. ENTER DATED: Mineola , NY February 7 , 2012 ENTERED FEB 1 6 2012 NASSAU COUNTY COUNTY CLERK' S OFFtCE

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