Affidavit of Service Is Primary Proof

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The Second Department held, in National Heritage Life Insurance Co. v. T.J. Properties Co., 286 AD2d 715 [2d Dept. 2001], that the affidavit of service of a process server constitutes prima facie evidence of valid service. An affidavit of service by a process server which specifies the papers served, the person who was served, and the date, time, address and sets forth facts showing that service was made by an authorized person, and in an authorized manner, constitute prima facie evidence of proper service. See, Maldonado v. County of Suffolk, 229 AD2d 376 [2 Dept. 1996].

The bare denial of service is insufficient to rebut prima facie proof of proper service pursuant to CPLR 308 created by a process server’s affidavit. Wunsch v. Cerwinski, 36 AD3d 612 [2 Dept. 2007].

R. A. Klass
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Consolidation of Actions

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Consolidation is generally favored in the interested of judicial economy and ease of decision-making where cases present common questions of law and facts, unless the opposing party demonstrates that consolidation will prejudice a substantial right. See, Rist v. Comi, 260 AD2d 890 (3d Dept. 1999); Progressive Insurance Co. v. Vasquez, 10 AD3d 518 (1st Dept. 2004); Eagle Pet Service Co., Inc. v. Pacific Employers Insurance Co., 102 AD2d 814 (2d Dept. 1984).

It is not necessary, for purposes of consolidation, that all parties or all issues be common to both actions. See, Fourteen Sharot Place Realty Corp. v. Miceli, 125 AD2d 634 (2d Dept. 1986). The commonalities of the actions and the pressing need for judicial relief may constitute sufficient bases for consolidation of actions.

R. A. Klass
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Plaintiff Has Stated Valid Causes of Action Sufficient to Withstand Defendants’ Motion to Dismiss Action

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In an action, Defendants may move to dismiss a Plaintiff’s Complaint based upon the allegation that the Complaint fails to state a cause of action, pursuant to CPLR 3211(a)(3) and (7). In deciding such a motion, the court must accept the facts as alleged in the Complaint as true, according the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Goldman v. Metropolitan Life Insurance Co., 5 NY3d 561 [2005]. Essentially, the court should impose a “four corners” test in liberally construing the four corners of the pleading to see whether they establish valid causes of action. Schwaner v. Collins, 17 AD3d 1068 [4 Dept. 2005].

As the Court of Appeals enunciated in Guggenheimer v. Ginzburg, 43 NY2d 268 [1977], on a motion to dismiss made pursuant to CPLR 3211(a)(7), “the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law.” Further, “when evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate.” Guggenheimer, supra at 275.

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Punitive Damages Are Not Recoverable for Ordinary Breach of Contract

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Punitive damages are those awarded to a litigant, separate and apart from the person’s actual damages, to “punish” the bad conduct of the other party.

It is well-founded that “punitive damages are not recoverable for ordinary breach of contract as their purpose is not to remedy private wrongs but to vindicate public rights.” See, Rocanova v. Equitable Life Assurance Society of United States, 83 NY2d 603 [1994]. Damages arising from a simple breach of contract are usually limited to contract damages. See, New York University v. Continental Insurance Company, 87 NY2d 308 [1995].

R. A. Klass
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Standard for Injunctive Relief

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“This Court Should Grant Injunctive Relief”

CPLR 6301 authorizes the Court to grant a preliminary injunction where it appears that the defendant threatens, is about to, or is doing an act in violation of the plaintiff’s rights respecting the subject of the action, which would tend to render any judgment ineffectual. A temporary restraining order may also be granted where it appears that there is immediate and irreparable injury, loss or damage resultant therefrom.

This Court is permitted to issue an injunction in this matter based upon the following factors, which are demonstrated herein: (a) there is a likelihood of Plaintiffs’ success on the merits; (b) irreparable harm will occur without an injunction; and (c) a balancing of the equities tips in favor of Plaintiffs as against Defendants. Hoeffner v. John F. Frank Inc., 302 AD2d 428 (2d Dept. 2003).

A: Likelihood of success on the merits:

Under the first prong of the three-part test, the plaintiff is not required to show a certainty of success, but rather must make a prima facie showing of its right to relief. Terrell v. Terrell, 279 AD2d 301 (1st Dept. 2001).

B: Irreparable harm or injury:

Courts have generally construed irreparable injury as actual and imminent harm to be suffered, as opposed to a remote possibility or speculation. See, e.g. Khan v. State University of New York Health Science Center at Brooklyn, 271 AD2d 656 (2d Dept. 2000). An injury will be viewed as irreparable if adequate compensation cannot be fixed, such as in cases involving the loss of a business’s goodwill. Battenkill Veterinary Equine PC v. Cangelosi, 1 AD3d 856 (3d Dept. 2003).

Where the plaintiff’s allegations in support of the motion are specific and factual, and not conclusory in nature, the granting of injunctive relief is proper. Cf., Matos v. City of New York, 21 AD3d 936 (2d Dept. 2005).

C: Balancing of the equities:

In balancing the equities, the court must weigh the harm each side will suffer in the absence or face of injunctive relief. Battenkill Veterinary Equine PC v. Cangelosi, supra; Credit Index LLC v. Riskwise Intern. LLC, 282 AD2d 246 (1st Dept. 2001). For the plaintiff to prevail, “[i]t must be shown that the irreparable injury to be sustained…is more burdensome [to the plaintiff] than the harm caused to the defendant through imposition of the injunction.” McLaughlin, Piven, Vogel, Inc. v. W.J. Nolan and Co. Inc., 114 AD2d 165 (2d Dept. 1986), quoting Nassau Roofing and Sheet Metal Co. Inc. v. Facilities Development Corp., 70 AD2d 1021 (3d Dept. 1979).

R. A. Klass
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