Injunctive Relief

Critical to a legal malpractice action that the plaintiff prove the “ case within a case ”

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It is critical to a legal malpractice action that the plaintiff prove the “ case within a case ” in order to sue an attorney. In Salans LLP v VBH Properties S.R.L., 2019 NY Slip Op 02611 [1st Dept Apr. 4, 2019], the court held:

plaintiff demonstrated prima facie entitlement to judgment in the legal malpractice counterclaim by showing that defendants could not prove that but for plaintiff’s failure to appear at the TRO hearing the hearing court would have denied the TRO or set a shorter return date (see Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 272, 780 N.Y.S.2d 593 [1st Dept. 2004] [holding that to establish a claim for litigation malpractice the client “ must meet the ‘ case within a case ’ requirement, demonstrating that ‘ but for ’ the attorney’s conduct the client would have prevailed in the underlying matter or would not have sustained any ascertainable damages ”] ). Defendants speculate that had plaintiff appeared at the TRO hearing, injunctive relief may have been denied or the hearing court may have adjourned the case to an earlier date. Such speculation is insufficient to sustain a claim for legal malpractice (see Freeman v. Brecher, 155 A.D.3d 453, 453, 64 N.Y.S.3d 13 [1st Dept. 2017]; Brooks v. Lewin, 21 A.D.3d 731, 734–735, 800 N.Y.S.2d 695 [1st Dept. 2005], lv denied 6 N.Y.3d 713, 816 N.Y.S.2d 749, 849 N.E.2d 972 [2006] ).

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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