Mercury Cas. Co. v Grant

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Mercury Cas. Co. v Grant 2011 NY Slip Op 32590(U) September 28, 2011 Supreme Court, Nassau County Docket Number: 9265/11 Judge: Thomas P. Phelan 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] 5U1J SHORT FORM ORDER STATE OF NEW YORK SUPREME COURT Present: HON. THOMAS P. PHELAN. Justice. TRIAL/IAS PART 2 NASSAU COUNTY MERCURY CASUALTY COMPANY Plaintiff ORIGINAL RETURN DATE: 08/10/11 SUBMISSION DATE: 08/10/11 Index No. 9265/11 . -against - INGER GRANT L YNBROOK ADV ACUPUNCTURE, P. MOTION SEQUENCE #1 HEALTHY LIFE CHIROPRACTIC, P. IDK IMAGING , P. PRO HEALTH ACUPUNCTURE , P. SHERYL TOMACK , PHYSICIAN , LLC BTS MEDICAL , P. ELEMAM PHYSICIAN , P. GREENWAY MEDICAL SUPPLY , INC BIG APPLE CHIROPRACTIC, P. Defendants. The following papers read on this motion: Order to Show Cause.. . Application by plaintiff pursuant to CPLR 6311 for a preliminary injunction enjoining defendants from commencing, prosecuting or pr()ceeding in any lawsuits pending in any court of competent jurisdiction , pending the outcome and determination of this action , is denied. No opposition to the application has been submitted by defendants. In this action , plaintiff, a no- fault insurance carrier , seeks a declaratory judgment that there is no no- fault coverage for Inger Grant and the provider defendants as a result of the motor vehicle accident that occurred on March 21 , 2010 , and that none of defendants or their assigns are entitled to first-party no-fault benefits. [* 2] RE: MERCURY CASUALTY COMPANY v. GRANT , et al. Page 2 Plaintiff seeks preliminary injunctive relief in an effort to stay any and all pending arbitrations and lawsuits. The arbitration scheduled for July 26 2011 , involving IDF MEDICAL DIAGNOSTICS , P. C. docketed under AAA# 412011011727 was stayed pending the hearing and determination of this motion. The court notes that the request for arbitration names this provider as IDF DIAGNOSTIC MEDICAL PC (Ex. 2). The provider is named as a defendant in this action as IDK IMAGING, P. , and that is the entity that was served with the order to show cause and supporting papers. Although counsel for IDF DIAGNOSTIC MEDICAL PC was served with a copy of the proposed order to show cause , they were not served with the signed order to show cause. The court at this juncture cannot determine the proper name for this provider. The procedural device of a preliminary injunction is a provisional remedy. Its he ultimate rights of the parties. Rather it is to function is not to determine Sterling American Capital, LLC, 40 AD3d 902 , 903 (2d Dept. 2007)). The decision whether to grant or deny such relief 61 AD3d 630 (2d Dept. 2009)). In reaching that decision , the court is mindful that a preliminary injunction is a drastic remedy which should be used sparingly, with caution and only when (City of Long Beach maintain the status quo rests in the sound discretion of the court Malouf, (Dixon Ash (Trump on the Ocean, LLC required in urgent situations or grave necessity 81 AD3d 713 (2d Dept. 2011)). the movant must demonstrate 1) a likelihood of success on the merits; 2) irreparable injury absent the granting of the (Rowland Dushin 82 AD3d 738 , 739 (2d Dept. 2011)). The injury sustained by plaintiff must be more burdensome to plaintiff than the harm which would be caused to (McLaughlin, Piven , Vogel, defendants as a result of imposition of the app den. 67 114 AD2d 165 , 174 (2d Dept. NY2d 606 (1986)). Proof establishing the necessary elements must be supported by affidavit and other competent proof buttressed by evidentiary detail (CPLR 6312( c)). Bare , conclusory allegations are insufficient to support the application (1234 86 AD3d 18 , 23 (2d Dept. 2011); 291 AD2d 434 , 435 (2d Dept. 2002)). In order to obtain a preliminary injunction , requested relief; and 3) a balancing of the equities in the movant's favor injunction Inc. W.J. Nolan West Side SRO Law Project, Broadway LLC Neos Co., Inc., Lacy, 1986) [* 3] Page 3 RE: MERCURY CASUALTY COMPANY v. GRANT, et ale While the existence of factual issues alone wil not justify denial of a motion for a preliminary injunction , the motion should not be granted where there are issues that subvert plaintiff's likelihood of success on the merits to such a degree that it cannot be said that plaintiff Grifn 1 AD3d 327 , 328 (2d Dept. 2003)). has established a clear right to the relief Co. (Milbrandt Here , plaintiff has failed to meet its burden of demonstrating it would suffer irreparable harm if a preliminary injunction were not granted. In the context of a preliminary injunction , irreparable injury is one that cannot be redressed through a 66 AD3d 635 (2d Design Concepts, Ltd. 221 AD2d 454 455 (2d Dept. 1995)). Monetary loss will not amount to irreparable harm unless the movant provides evidence, not here present , of damage that cannot be rectified by financial compensation. The alleged harm must be shown by the moving party to be Steam Heat, Inc. 216 AD2d 440 imminent Omnipotent Communications, Inc., (DiFabio monetary award Walsh Dept. 2009); (Golden , not remote or speculative 442 (2d Dept. 1995)). Under the circumstances presented here , even assuming, without deciding, that plaintiff has made a sufficient showing of a likelihood of success on the merits of the complaint , it has not demonstrated a sufficient prospect of irreparable harm so as to warrant issuance of a preliminary injunction. Plaintiff has not demonstrated irreparable harm that rises to a level sufficient justify the imposition of the requested to injunctive relief. Plaintiff has failed to (FamilyRecorder Tel. Network 74 AD3d 738 , 739- 740 (2d Dept. demonstrate that the alleged harm is imminent, not remote or speculative Friendly Media, Inc. 2010)). All applications not specifically addressed herein are denied. To insure the expeditious completion of disclosure in this action , a Preliminary Conference shall be held. All parties are directed to appear on October 28, 2011 , at 9:30 a. m. in the Preliminary Conference area , lower level of this courthouse , to obtain and fil out a Preliminary Conference Order. Movant is directed to serve a copy of this order [* 4] Page 4 RE: MERCURY CASUALTY COMPANY v. GRANT, et al. upon all parties forthwith upon receipt of a copy of same from any source and to thereafter provide proof of such service upon chambers. As part of the Preliminary Conference , plaintiff shall specify if defendants have appeared and by whom , or if defendants are in default. In the event all of the defendants are in default , plaintiff may obviate its appearance at the Preliminary Conference by filing a motion for a default judgment prior to the date of the Preliminary Conference and notifying both chambers and the Preliminary Conference part that the motion has been filed. This decision constitutes the order of the court. HON THGM Dated: 9 - ;) 'i - P. PHLAN ""J /I'/Z MAS P. PHELAN, J. Attorneys/Parties of Record ENTERED The Law Office.of Jason Tenenbaum , P. Attention: Jason Tenenbaum , Esq. Attorneys for Plaintiff 595 Stewart Avenue , Suite 550 Garden City, NY 11530 Inger Grant Defendant 143 South Maplewood Road Monticello , NY 12701 Lynbrook Adv Acupuncture , P. C. Defendant 143 Hughes Place Albertson , NY 11507 OCT 03 2011 NASSAU COUNTY COUNTY CLERK' S OFFICE [* 5] RE: MERCURY CASUALTY COMPANY v. GRANT, et al. Healthy Life Chiropractic , P. C. 2801 East 11th Brooklyn , Street , NY Apartment 3B 11235 IDK Imaging, P. Defendant 1963 Grand Concourse Bronx , NY 10453 Economou & Economou , P. Attention: Theodore Economou, Esq. Attorneys for IDF Medical Diagnostics , P. a/ a/ 0 Inger Grant 485 Underhill Boulevard Syosset , NY 11791 Prohealth Acupuncture , P. C. Defendant 7205 - 20th A venue Brooklyn , NY 11204 Sheryl Tomack , Physician , LLC Defendant 30 Merrick Avenue, Suite 110 East Meadow , NY 11554 BTS Medical , P. C. Defendant 160 Long Beach Road Island Park , NY 11558 Elemam Physician , P. C . Defendant 1A Whispering Court Dix Hils , NY 11746 Page 5 [* 6] RE: MERCURY CASUALTY COMPANY v. GRANT, et ale Greenway Medical Supply, Inc. Defendant 2570 - 86th Street Brooklyn , NY 11214 Big Apple Chiropractic , P. C. Defendant 4181 Bedford Avenue Brooklyn , NY 11229 Page 6

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