        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

269
CA 12-01869
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.


RG & RH, INC. AND LG & WH, INC.,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

SCHMIDT’S AUTO BODY & GLASS, INC.,
DEFENDANT-APPELLANT.
----------------------------------------------
SCHMIDT’S AUTO BODY & GLASS, INC., THIRD-PARTY
PLAINTIFF-APPELLANT,

                    V

RUSSELL HANNY, RICHARD GREENAWALT, AUTO
COLLISION & GLASS, INC., RICHARD R. GREENAWALT,
AND JUANITA GREENAWALT-SLOBE, THIRD-PARTY
DEFENDANTS-RESPONDENTS.


MOSEY PERSICO, LLP, BUFFALO (JENNIFER C. PERSICO OF COUNSEL), FOR
DEFENDANT-APPELLANT AND THIRD-PARTY PLAINTIFF-APPELLANT.

MAGAVERN MAGAVERN GRIMM LLP, NIAGARA FALLS (SEAN J. MACKENZIE OF
COUNSEL), FOR PLAINTIFFS-RESPONDENTS AND THIRD-PARTY
DEFENDANTS-RESPONDENTS RUSSELL HANNY AND RICHARD GREENAWALT.

HARRIS BEACH PLLC, NIAGARA FALLS (PATRICK J. BERRIGAN OF COUNSEL), FOR
THIRD-PARTY DEFENDANTS-RESPONDENTS AUTO COLLISION & GLASS, INC.,
RICHARD R. GREENAWALT AND JUANITA GREENAWALT-SLOBE.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered January 4, 2012. The order denied
defendant-third-party plaintiff’s motion for an injunction during the
pendency of the underlying action.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Defendant-third-party plaintiff (defendant) appeals
from an order denying its motion for a preliminary injunction
prohibiting third-party defendants Auto Collision & Glass, Inc.,
Richard R. Greenawalt and Juanita Greenawalt-Slobe from engaging in
any business activity that is similar to or in direct competition with
defendant’s business activity within a five-mile radius of 2200
Military Road in Niagara Falls during the pendency of this action.
                                 -2-                           269
                                                         CA 12-01869

“Preliminary injunctive relief is a drastic remedy [that] is not
routinely granted” (Marietta Corp. v Fairhurst, 301 AD2d 734, 736; see
Peterson v Corbin, 275 AD2d 35, 37, appeal dismissed 95 NY2d 919). It
is well settled that a party seeking a preliminary injunction “must
establish, by clear and convincing evidence . . . , three separate
elements: ‘(1) a likelihood of ultimate success on the merits; (2)
the prospect of irreparable injury if the provisional relief is
withheld; and (3) a balance of equities tipping in the moving party’s
favor’ ” (Destiny USA Holdings, LLC v Citigroup Global Mkts. Realty
Corp., 69 AD3d 212, 216, quoting Doe v Axelrod, 73 NY2d 748, 750; see
J.A. Preston Corp. v Fabrication Enters., 68 NY2d 397, 406).
Moreover, “[a] motion for a preliminary injunction is addressed to the
sound discretion of the trial court[,] and the decision of the trial
court on such a motion will not be disturbed on appeal, unless there
is a showing of an abuse of discretion” (Destiny USA Holdings, LLC, 69
AD3d at 216 [internal quotation marks omitted]; see Axelrod, 73 NY2d
at 750). Here, we conclude that the court did not abuse its
discretion in denying defendant’s motion for a preliminary injunction
(see generally Marcone APW, LLC v Servall Co., 85 AD3d 1693, 1695;
Eastman Kodak Co. v Carmosino, 77 AD3d 1434, 1435).




Entered:   May 3, 2013                         Frances E. Cafarell
                                               Clerk of the Court
