Rivco Constr., LLC v Stapleton

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Rivco Constr., LLC v Stapleton 2018 NY Slip Op 32006(U) August 17, 2018 Supreme Court, New York County Docket Number: 653459/2018 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 08/17/2018 03:30 PM INDEX NO. 653459/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 08/17/2018 • ·ltlPREllE CGURT'eF THE STATE OF Ml!W·YORK .fEW VORK·COUNTY 7 Justice --·--.--..... 1 ------X INDl!XNO. RIVCO CONSTRUCTION, LLC, PATRICK COSTIGAN, and BRIAN COSTIGAN, F>taintiffs, 653459/2018 08/1712018 MOTIOfUM!Q.·NO. \ 002 ------ - v. JOSEPH STAPleTON, DECISiON ANOORDER Defendant. -------~~--~-----~~-------------------X The folfowfng e-fUed dOcuments, listed by NYSCEF document number (Motion 002) 12, 13, 14, 15, '16, 25,28,29,30,31,32,33,34,35,36,37,38,39,41,42,43,44 lNJUNCTION/RESTRAlNING ORDSR were read on this motion to/for ORDER Upon the foregoing documents, it is ORDERED that the motion of plaintiffs for a preliminary injunction is DENIED; and it is further ORDERED that the temporary restraining order issued on July 26, 2018 is VAC~TED; and it is further ORDERED that the above denial is without prejudice to plaintiffs moving,~ pro/tune,· for an order holding defendant Stapleton in contempt of the temporary restraining order issued on July 26, 2018, should they prevail at arbitration; and it is further 1 of 5 [*FILED: 2] NEW YORK COUNTY CLERK 08/17/2018 03:30 PM INDEX NO. 653459/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 08/17/2018 ·6MM•o that counsel shall appear for a discovery preliminary con~erence .in IAS Part· 59, 60 Centre Street, Room 331, New York, New York on Decembe.r 18, 2018, 9:30 AM. ·DECISION On their motion for a preliminary injunction, plal~tif;fs submit an affidavit, that of defendant Brian Costigan, only for the first time in reply to defendant's opposition papers. Such affidavit, wh~ch improperly raises facts for the first time in Feply, must be disregarded. See McNair v Lee~ · 24 AD3d 159, 160 (1st Dept. 2005) . In addition, the Show Cause Order· :did not [: : pl!OVid~ ( . for service of reply papers; nor did plaintiffs seek leave to·do so. Plaintiffs urge that, nevertheless, the court should consider such affidavit to the extent that it alleges facts that arose after July 26, 2018, the date of Specifically, states that in defendant his affidavit, Stapleton osc filing. plaintiff violated the Costigan temporary restraining order issued on that date when, on August 8, 2018, defendant Stapleton participated in a meeting with JRM, client of Rivco, which plaintiff Costigan personally witnessed.· eei1tl81e RIVOOcdMmwcTloN. U.CsSTAPL&TON, JOSEPH .MOlontco.G02 2 of 5 a Page2of5 [*FILED: 3] NEW YORK COUNTY CLERK 08/17/2018 03:30 PM NYSCEF DOC. NO. 45 INDEX NO. 653459/2018 RECEIVED NYSCEF: 08/17/2018 · The court does not take lightly defendant Stapleton's purported violation of the· temporary restraining order. 1 Nonetheless, even if ;it took place, such 1violation does not establish a likelihood of success on the merits ·of plaintiffs' cauiSe·&f actiort for breach of the Operating Agreement. The facts ":..,· :o·f defendant '·s alleged violation of the Operating Agreement were available .a·t the time of the initial OSC filings. Defendant is correct that a preliminary in-junction is a ''drastic remedy", and that·for plaintiffs to be entitled to such relief, they must make · ~'a ci'e-ar showing of likelihood of success on the merits, that the [plaintiffs] will suffer irreparable injury un1ess· the relief souqht isrqranted and that the balancing of equites lies in favor of movant' Faberge ·Intern. Inc. y,,Di Pino, 109 AD3d 235, 240 (l5t 1 • Dept •. 19"S'5}. "Proof of such elements must be by affidavit and /other CO!flpetent proof, with evidentiary detail." ~aberge, supra \._ {underlining submis~ion supplied); see also CPLR 63'12 (a) • Plaintiffs of .the bare Operating Aqreement and the affirmation of their attorney does not meet such statutory requirement. ·. Nor do.es the opposing affidavit of defendant Stapleton provide any eviden.ce that plaintiffs are likely to succeed on the merits of their claim. On the contrary, de·fendant contends 'Plaintiffs may move for an order holding defendant Stapleton in contempt of the temporaryo;o':fes~raining order, should they ultimately prevail in the arbitration. lllH•ta RtVCO~,LLC'4~.·JOIEPH llOtlon No•. - 3 of 5 [*FILED: 4] NEW YORK COUNTY CLERK 08/17/2018 03:30 PM INDEX NO. 653459/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 08/17/2018 that it wa:s plaintiffs who breached the Operating Agr•ment by ' terminating his employment without just cause. In addition ) in the Answer submitted in opposition, which defendant Stapleton personally verified2 , he alleges that the issues before the court a:re sooject to a pending arbitration. Al though by the clear terms of the Operating Agreement,· the enforceability of the noncomplete clause and any confidentiality duties thereunder are not subject to arbitration, the question of the propriety of plaintiffs' termination of defendant's employment thereunder is properly before the arbitrator pursuant to Section 24. 5 of the Operating Agreement. Both sides agree that the evident:iary hearing in such arbitration is scheduled to begin August 21, 2018. Without resolution. of the issue whether p'.laintiffs terminated defendant for cause, which must await the determinat:fon of the arbitration, plaintiffs cannot make a clear showing of Se a likelihood Moreover, of success of the merits of their claim. plaintiffs offer no refutation of defendant's assertion that he filed his demand for arbitration on October 11, 2017, nine months before plaintiffs sought injunctive relief here. Thus, laches is a further basis for the court to decline to grant an extraordinary equitable remedy to plaintiffs. i "A verified [by the party, as. opposed to his attorney] pleading ,may be utilized-whenever the latter is required." CPLR 105(u); "~also Feffer v Malpe_so, 210 AD2d 60 (1st Dept. 1994). Page4oU 4 of 5 [*FILED: 5] NEW YORK COUNTY CLERK 08/17/2018 03:30 PM NYSCEF DOC. NO. 45 INDEX NO. 653459/2018 RECEIVED NYSCEF: 08/17/2018 Likewise, in their initial supporting papers, plaiqtiffs failed t~ come forward with any competent evidence,· such as an affidavit, that demonstt;"ates that they will suffer irreparable i~njury should the preliminary injunction not be i$sued or that ·the equities balance in their favor. For the same reasons, an extension of the temporary restraining order is not justified. 811712G18 DATE CHECK ONE: N!PUCATJON:: .. CMMtt••••te ::m,~. SETTLE ORDER 0 X. DENIED.~· INCLUDES TRANSFl!ltMEAUIGN 65S4lll2018 RfVCO GORITRUCnort, Ll.C vs. STAPLETON, . - . llollon Ho. 002 . ..~ 5 of 5 · =.:::"1°" SU8lllT eRDER FIDUCIARY APPolNlMENT Paletof5

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