The “Irreparable Harm” Conundrum in Obtaining a Preliminary Injunction
Situations arise every day requiring attorneys to commence an action seeking court intervention to obtain immediate provisional relief, “respecting the subject of the action,” to protect a client against actions, in violation of the client’s rights, by a person, who is either threatening, about to do, doing, or procuring or suffering to be done, actions, violating those rights, or which, if unrestrained would produce injury to the client during the pendency of the action. See CPLR §6301.
When confronted with such circumstances, the client understandably demands that the alleged offender’s actions be halted or prevented as soon as possible. However, the rules governing such relief set a high threshold that must be met before courts will exercise the solemn power granted them to enjoin the actions complained of.
This often presents the attorney with perplexing choices on how to present the client’s case in ways that do not run afoul of principles that will automatically bar the immediate relief the desperate client is seeking from the court.
Upon commencing an action against the alleged offender, a notice of motion for preliminary injunction may be served with the summons and complaint, or at any time thereafter and prior to judgment. CPLR §6311(1). On moving for a preliminary injunction, CPLR §6312(a) prescribes that the plaintiff “shall show,” by affidavit and such other evidence as may be submitted, that there is a cause of action, and either:
that the defendant threatens or is about to do, or is doing or procuring of suffering to be done, an act in violation of the plaintiff’s rights respecting the subject of the action and tending to render the judgment ineffectual; or
that the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff. (Emphasis added).
In addition, CPLR §6313(a) provides:
Generally. If, on a motion for a preliminary injunction, the plaintiff shall show that immediate and irreparable injury, loss or damages will result unless the defendant is restrained before a hearing can be had, a temporary restraining order may be granted without notice. Upon granting a temporary restraining order, the court shall set the hearing for the preliminary injunction at the earliest possible time. * * * * (Emphasis added).
Preserving the Status Quo
As explained in Spectrum Stamford LLC v. 200 Atlantic Title LLC, 162 AD3d 615, 616, 81 NYS3d 5 (1stDept. 2018), [i]t is well settled that the ordinary function of a preliminary injunction is not to determine the ultimate rights of the parties, but to maintain the status quo until there can be a full hearing on the merits.”
Accordingly, “if relief is required because of imperative, urgent, or grave necessity, then a court, acting with great caution and upon clearest evidence, i.e., where the undisputed facts are such that without an injunction order a trial will be futile[,] may grant a preliminary injunction.” (citations and internal quotations omitted). (Emphasis added).
“The decision to grant or deny provisional relief, which requires the court to weigh a variety of factors, is a matter ordinarily committed to the sound discretion of the lower courts,” and “[t]he party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor.” Nobu Next Door, LLC v. Fine Arts Housing, Inc., 4 NY3d 839, 840, 800 NYS2d 48 (2005). (Emphasis added). See also Doe v. Axelrod, 73 NY2d 748, 750 (1988).
Although a preliminary injunction should not ordinarily be granted “where there is a factual dispute that can only be resolved by a trial,” the existence of a factual dispute will not bar the granting of a preliminary injunction “if one is necessary to preserve the status quo and the party to be enjoined will suffer no great hardship as a result of its issuance.” Mr. Natural, Inc. v. Unadulterated Food Products, Inc., 153 AD2d 729, 544 NYS2d 182 (2d Dept. 1989).
It is interesting to note that the courts invariably require a showing of “irreparable injury” as one of the three essential prongs required for granting a preliminary injunction. See, e.g., Emerald Green Property Owners Association, Inc. v. Jada Developers, LLC, 63 AD3d 1396, 882 NYS2d 328 (3d Dept. 2009) (citing Nobu, supra). However, the only statutory reference to “irreparable injury” is found in CPLR §6313(a), supra, where the plaintiff must show immediate “irreparable injury” for a court to grant a temporary restraining order (TRO) prior to holding the expedited hearing required to decide the plaintiff’s motion for preliminary injunction. This begs the question whether the “irreparable injury” required for granting a preliminary injunction, which may not necessarily be “immediate,” but may yet result from action which would tend to render the judgment ineffectual or would produce injury to the plaintiff, is equivalent to the “irreparable injury” required for a temporary restraining order (TRO.)
From the client’s perspective, the threatened deprivation of rights or injury is always “immediate.” Accordingly, most, if not all, motions for preliminary injunction are accompanied by an application for a TRO. In effect then, the plaintiff’s initial showing to the court must always strive to meet the “immediate and irreparable injury, loss or damages” standard specified in CPLR §6313(a), and, if plaintiff fails to do so, any prospect of the court subsequently granting the motion for preliminary injunction becomes problematical.
\Therefore, unless the client’s situation truly requires “immediate” judicial restraint of the defendant, to preserve the status quo, in order to prevent deprivation of rights, injury, loss, or damages, “before a hearing can be had,” prudence dictates that the plaintiff restrict its application for injunctive relief to a motion for preliminary injunction only and not seek a TRO. See, e.g., Ramos v. 145 Bleeker Street Corp., 26 Misc.3d 1237(A), 907 NYS2d 440 (Sup. Ct., Kings. Co., 2010) (Plaintiff provided no basis for finding immediate and irreparable injury justifying issuance of a TRO); Tesone v. Hoffman, 84 AD3d 1219, 923 NYS2d 704 (2d Dept. 2011) (vacating TRO granted ex partewhere plaintiffs failed to show danger of “immediate or irreparable injury”).
The Elements of “Irreparable Injury”
The facts of each lawsuit, necessarily, are invariably sui generis and unique to the parties and circumstances involved. Therefore, what constitutes irreparable injury in an action is always dependent upon the factual situation in which the parties’ dispute arises, and upon the legal principles that govern the parties’ rights and obligations in the context of that dispute.
Nevertheless, there are general rules that courts apply to determine whether the party seeking provisional relief has met the threshold requirements to judicially restrain a defendant’s actions in a particular case.
(a) Monetary Damages Generally Bar Equitable Relief. Generally, “in a pure contract money action, there is no right of the plaintiff in some specific subject of the action; hence, no prejudgment right to interfere in the use of the defendant’s property; and no entitlement to injunctive relief pendente lite. In such situations the plaintiff has an adequate remedy in the form of monetary damages, and injunctive relief is both unnecessary and unwarranted.” Destiny USA Holdings, LLC v. Citigroup Global Markets Realty Corp., 69 AD3d 212, 220, 889 NYS2d 793 (4th Dept. 2009). (Emphasis added). Likewise, “[i]n general, specific performance will not be ordered where money damages ‘would be adequate to protect the expectation interest of the injured party.’” Sokoloff v. Harriman Estates Development Corp., 96 NY2d 409, 415 (2001).
As the Court of Appeals explained in Credit Agricole Indosuez v. Rossiyskly Kredit Bank, 94 NY2d 541, 544-545, 548 (2000),
In applying provisional equitable remedies under civil procedure codes, from as early as 1892 in Campbell v. Ernest, 64 Hun. 188, 19 N.Y.S. 123, our courts have consistently refused to grant general creditors a preliminary injunction to restrain a debtor’s asset transfers that allegedly would defeat satisfaction of any anticipated judgment.
As Professor Siegel has put it, the mere danger of asset-stripping is not a sufficient basis to make an exception to the general rule
(b) The “Specific Funds” Exception. Nevertheless, where it can be shown that the plaintiff is entitled to specific funds that constitute “the subject of the action,” a “preliminary injunction [is] appropriate under the express wording of [CPLR §§6301 and 6312(a), supra].” Credit Agricole Indosuez, supra.
In addition, the First Department, in Amity Loans v. Sterling National Bank & Trust Company of New York, 177 AD2d 277, 279, 575 NYS2d 854 (1st Dept. 1991), held that “injunctive relief is appropriate to remedy the conversion of identifiable proceeds as sought in the underlying action,” and that “[i]t is well-settled that an action will lie for the conversion of money where there is a specific, identifiable fund and an obligation to return or otherwise treat in a particular manner the specific fund in question.”
Similarly, in Sau Thi Ma v. Xuan T. Lien, 198 Ad2d 186, 604 NYS2d 84 (1st Dept. 1993), the plaintiff, who claimed to be the rightful purchaser of a winning $8 million lottery ticket, moved for a preliminary injunction to escrow the payments of the lottery ticket pending determination of his claim.
In reversing the IAS Court’s denial of the motion, the First Department found that the plaintiff had “shown irreparable injury absent the relief sought,” because the defendant had “indicated his intention to share his winnings with his family, and the first installment has already been paid to him,” and, “[t]hus, if the requested relief is not granted, a substantial amount of money may be dissipated or otherwise unavailable for recovery.”
(c) The Construction Mortgage Exception. In Destiny USA Holdings, supra, 69 AD3d at 220-221, the court noted that “cases of construction mortgages are an exception to the general rule. Since the law regards land as unique, an agreement to buy land can be specifically enforced even though the defendant’s sole obligation is to pay money…Although the question is close, it may not be too great a stretch to include advances under a construction mortgage. In such circumstances, the agreement…is not a simple contract to lend money. It is an integral part of a contract to sell [or develop] real property.” (Citations and internal quotes omitted).
(d) The “Good Will” Exception. Courts have also found irreparable injury in cases involving the threatened or continued loss of good will. “The loss of good will and damage to customer relationships, unlike the loss of specific sales, is not easily quantified or remedied by money damages and may warrant a finding of irreparable injury in cases such as those involving unfair competition tort claims.” Eastview Mall, LLC v. Grace Holmes, Inc., 182 AD3d 1057, 122 NYS3d 848, 851 (4th Dept. 2020)(Citations and internal quotes omitted).
(e) The Article 78 Exception. Generally, “injunctive relief will not lie where there is an adequate remedy at law in a proceeding under article 78. However, where a party seeks to preserve the status quo during the pendency of an article 78 proceeding and the remedy at law does not provide a ‘full measure of relief,’ a preliminary injunction is appropriate supplemental relief.” Nassau Roofing & Sheet Metal Co. v. Facilities Development Corp., 70 AD2d 1021, 1022, 418 NYS2d 216 (3d Dept. 1979). (Citations omitted).
The most difficult circumstance in which a plaintiff seeking injunctive relief must show irreparable injury is where the plaintiff does not seek simply to restrain the actions of the putative defendant, but instead seeks an order from the court to require the defendant to do an affirmative act or actions, pending determination of the parties’ claims, without which the plaintiff would suffer injury in the interim and the judgment would be ineffectual.
The Court of Appeals, in the leading case of Bachman v. Harrington, 22 Bedell 458 (1906), set forth the essential principles governing the requirements for obtaining a mandatory injunction.
While, however, the language of the Code in terms authorizes an injunction only against the commission of acts, still it is doubtless within the power of a court of equity, in proper cases, to issue mandatory injunctions, and the provisions of the Code should not be so strictly construed as to deny that power in any case. But while such power may exist it is by no means unlimited, and when it exceeds the limit it is not mere error, but void as without jurisdiction.
As an example of an improper mandatory injunction, the Court compared the difference, in an action for specific performance of a contract for the sale of real estate, between restraining a defendant from conveying the subject premises to a third party, pending the action, and requiring the defendant, by an ex parte order, to convey the premises to plaintiff – which would be the ultimate relief sought in the action, and which is only justified under truly extraordinary and unique circumstances. See, e.g., SHS Baisley, LLC v. Res Land, Inc., 18 AD3d 727, 728, 795 NYS2d 690 (2d Dept. 2005).
As an example of a proper mandatory injunction, the Court explained that, “in the case of a threatened violation of a contract continuous in its character, such as a contract to furnish water or light during a term, the defendant might be restrained from failing to supply water or light during the pendency of the litigation.”
The court crystallized the essential difference between the two classes of cases by explaining the nature of the status quo that a mandatory injunction is employed to preserve.
The office of a preliminary injunction is to preserve the status quo until, upon final hearing, the court may grant full relief. Generally, this can be accomplished by in injunction prohibitory in form, but it sometimes happens that the status quo is a condition not of rest, but of action, and the condition of rest is exactly what will inflict the irreparable injury upon complainant, which he appeals to the court of equity to protect him from. In such a case courts of equity issue mandatory writs before the case is heard on the merits. (Emphasis added).
Nevertheless, “a mandatory preliminary injunction (one mandating specific conduct), by which the movant would receive some form of the ultimate relief sought as a final judgment, is granted only in unusual situations, where the grant of the relief is essential to maintain the status quo pending trial of the action.” Jones v. Park Front Apartments, LLC, 73 AD3d 612, 901 NYS2d 46 (2d Dept. 2010) (Emphasis added) (Citations and internal quotes omitted), and only where “the right [thereto] is clearly established.”Second on Second Café, Inc. v. Hing Sing Trading, Inc., 66 AD3d 255, 265, 884 NYS2d 353 (1st Dept. 2009).
In Second on Second, supra, plaintiff tenant operated a bar with a kitchen on the first floor of defendant landlord’s two-story building. Plaintiff’s commercial lease provided it with the express right to conduct “fast food cooking” on the premises. The landlord removed the tenant’s original exhaust vent and associated ductwork at the demand of the adjoining property owner.
The court held that the lease carried with it an implied appurtenant right for the tenant to install at its own expense an exterior exhaust fan and associated ductwork necessary for the operation of its kitchen equipment, and the court directed the landlord to permit the tenant to install the new exhaust fan and ductwork and to execute the permit applications required for the work.
The tenant had demonstrated to the court’s satisfaction that it was likely to succeed in proving that the roof of the building was the only viable location for a new exterior exhaust vent and that it would suffer irreparable harm in the absence of provisional relief.
Specifically, in accepting the tenant’s claim of irrevocable harm, the court explained:
[I]t is undisputed on this record that Café’s ability to operate a restaurant in its establishment potentially jeopardized its liquor license. Further, although Café did not quantify the revenue it lost as the result of its inability to operate its kitchen, it is obvious that the unavailability of hot food would make it difficult for a bar to book parties for corporate customers and other groups. Such parties apparently make up a significant proportion of the business of Café’s karaoke-oriented bar….We reject [landlord’s] argument that the loss of the goodwill of a viable, ongoing business does not constitute irreparable harm warranting the grant of preliminary injunctive relief. (Emphasis added).
IXIS North America, Inc. v. Solow Building Company II, LLC, 16 Misc.3d 1120(A), 847 NYS2d 902 (Sup. Ct., N.Y. Co., 2007), is another example of a case where the plaintiff was able to demonstrate its clear right to mandatory injunctive relief.
Plaintiff commercial tenant had expended approximately $6.7 million in rent and approximately $20 million in renovation costs over 17 years of its occupancy of the rental premises. At a time when 90% of its renovations were complete, the landlord, claiming that tenant had breached its lease, served notice that tenant could no longer use the freight elevators in the building and that all construction work must cease.
The court granted the plaintiff’s motion for preliminary injunction and enjoined defendant landlord “from preventing plaintiff completing the renovations in accordance with the plans previously approved by defendant.” The court reasoned thus:
On the issue of irreparable injury, the court finds that the damages that plaintiff would sustain if it is unable to complete the intended construction of numerous trading desks would be extremely difficult to calculate and such inability would be severely detrimental to plaintiff’s business. Moreover,…the lease provides that “in no event shall…Landlord…be liable…for loss of business or consequential damages hereunder.” Hence, money damages may not adequately compensate plaintiff if it is determined that defendant is liable to for improperly halting the renovation work.
Even though the grant of the requested preliminary injunction would essentially provide plaintiff with the ultimate relief requested in the complaint, extraordinary circumstances exist here that warrant such relief. Denial of the motion would result in the renovations already performed being unused in premises in which the plaintiff is paying a significant rental, whereas allowing the completion of the 10% of the remaining work, which plaintiff maintains would only take a week, would result in no “great hardship” to the landlord.
It is clear from the above discussion that a careful review of the caselaw precedent should be conducted before any motion seeking injunctive relief. Whether the motion is for a preliminary injunction only, or one made together with an application for TRO, it must be prepared carefully and supported with both affidavit and documentary evidence (a) that will persuasively demonstrate for the court the “imperative, urgent, or grave necessity” required for the granting of the relief requested, and (b) how the deprivation of the plaintiff’s rights and/or the injury, loss or damages that would continue or be threatened during the pendency of the lawsuit, in the absence of such relief, would be “irreparable.”
This article has attempted to show the factors that should be looked for and considered to support a finding of that requisite injury.
Adam Leitman Bailey is the founding partner of Adam Leitman Bailey P.C., and John M. Desiderio is the chair of the firm’s real estate litigation group. Kyle Facibene, a student at Hofstra Law School and a Fall extern at the firm, contributed to the preparation of this article.