Plaintiff, Winters Bros. Recycling Corp. ("Winters Bros."), move for a preliminary injunction enjoining Defendants from entering into, or inducing the breach of, any contracts for waste removal and recycling services with any person or entity currently under contract with Plaintiff.

BACKGROUND

The parties in this action are competing solid waste removal companies. Claiming that, without any justification or excuse, Defendants intentionally induced at least fifty Winters Bros.' customers to abandon or breach their service agreements with Plaintiff, Winters Bros. commenced this action against Defendants seeking injunctive relief and monetary damages based on a cause of action sounding in tortious interference with contract. The tortious interference with contract cause of action is the underlying claim in support of a preliminary injunction restraining Defendants from entering into contracts for waste removal and recycling services with any of Plaintiff's existing customers and communicating with and/or soliciting said customers in an effort to induce them to abandon or breach their Winters Bros service agreements .

In support of its request for injunctive relief, Winters Bros. alleges that Defendants have targeted and solicited at least 50 of its customers inducing them, by the use of misleading statements, to breach their contracts ^[FN1] resulting in a loss of good will, reputation and customer relationships, all of which Winters Bros. contends will lead to irreparable harm if a preliminary injunction is not granted. In this regard, Winters Bros. urges that damages alone cannot begin to compensate for the loss of potential renewal and referral business which might possibly have been generated by lost customers.

In opposition to Plaintiff's application, Defendant, Jet Sanitation Service Corp. ("Jet") maintains that, regardless of the manner in which a potential new customer approaches Jet ^[FN2], Jet consistently employs practices and procedures designed to ensure that a prospective customer is not currently under contract with another waste hauling company. Specifically, the general manager of Jet attests that Jet was unaware of the [*2]

existence of a valid contract between Winters Bros. and any of the 50 companies with whose contracts Jet allegedly interfered. Moreover, Jet counters that Winters Bros., on a number of occasions, has interfered with valid existing contracts between Jet and its customers. Jet further maintains that, were the Court to grant preliminary injunctive relief, Jet's ability to conduct business and to compete freely and fairly in the marketplace would be hampered.

DISCUSSION

The procedural device of a preliminary injunction is designed to maintain the status quo pending determination of an action City of Long Beach v. Sterling Am. Capital, LLC, 40 AD3d 902, 903 (2nd Dept. 2007); and Ingenuit, Ltd. v Harriff, 33 AD3d 589 (2nd Dept. 2006). The decision whether to grant or deny such relief rests in the sound discretion of the court. Ruiz v. Meloney, 26 AD3d 485, 486 (2nd Dept. 2006). In determining whether a movant has met this standard, the Court is mindful that a preliminary injunction is a drastic remedy which should be used sparingly, with caution, and only when required in urgent situations or grave necessity and then upon the clearest evidence. Wm. Rosen Monuments, Inc. v. Phil Madonick Monuments, Inc., 62 AD2d 1053 (2nd Dept. 1978).

In order to obtain a preliminary injunction the movant must demonstrate (1) a likelihood of success on the merits; (2) irreparable injury absent the granting of the requested relief; and (3) a balancing of the equities in the movant's favor. Aetna Ins.

Co. v. Capasso, 75 NY2d 860,862 (1990); W.T.Grant v. Srogi, 52 NY2d 496 (1981); and Wiener v. Life Style Futon Inc., 48 AD3d 458 (2nd Dept. 2008).

The injury to be sustained by plaintiff must be more burdensome to plaintiff than the harm which would be caused to defendants through the imposition of the injunction. McLaughlin, Piven, Vogel, Inc. v. W. J. Nolan & Co., Inc., 114 AD2d 165, 174 (2nd Dept. 1986), app. den. 67 NY2d 606 (1986).

To establish a likelihood of success on the merits, the movant must show that its right to a preliminary injunction is plain on the facts of the case. Peterson v. Corbin, 275 AD2d 35, 37 (2nd Dept. 2000), lv. app. dism., 95 NY2d 919 (2000). Proof establishing the necessary elements must be supported by affidavit and other competent proof buttressed by evidentiary detail. CPLR 6312(c). Bare, conclusory allegations are insufficient to support the application. Neos v Lacey, 291 AD2d 434, 435 (2nd Dept. 2002).

If a movant establishes the elements necessary to satisfy the tripartite test, factual issues raised by the opponent will not necessarily mandate denial of the motion. CPLR 6312. The existence of issues of fact cannot serve as the sole basis for denial of the motion.

Here, Plaintiff has failed to meet its burden of demonstrating it would suffer irreparable harm if a preliminary injunction were not granted.

In the context of a preliminary injunction, irreparable injury is one that cannot be redressed through a monetary award. Walsh v. Design Concepts, Ltd., 221 AD2d 454, 455 (2nd Dept. 1995). See also, Fischer v. Deitsch, 168 AD2d 599, 601 (2nd Dept. 1990) citing McLaughlin, Piven, Vogel, Inc. v. W.J. Nolan & Co., Inc., supra at 174. Monetary loss will not amount to irreparable harm unless the movant provides evidence, not here present, of [*3]damage that cannot be rectified by financial compensation. The alleged harm must be shown by the moving party to be imminent, not remote or speculative. Golden v. Steam Heat, Inc., 216 AD2d 440, 442 (2nd Dept. 1995).

Under the circumstances presented here, even assuming that Winters Bros. has made a sufficient showing of a likelihood of success on the merits of the complaint, it has not demonstrated a sufficient prospect of irreparable harm so as to warrant issuance of a preliminary injunction. Lost profits, however difficult to compute, are clearly compensable with money damages. Sterling Fifth Assoc. v. Carpentille Corp., Inc., 5 AD3d 328, 329 (1st Dept. 2004).

The elements of a cause of action for tortious interference with contract are set

forth in White Plains Coas & Apron Co., Inc. v. Cintas Corp., 8 NY3d 422, 426 (2007),

as follows:

(1) the existence of a contract ^[FN3] between Plaintiff and a third party; (2) Defendants' knowledge of the contract; (3) Defendants' intentional inducement of the third party to breach that contract or otherwise render performance impossible; and (4) damages to the Plaintiff.

Relief from such cause of action may be fully recompensed with a monetary award as the damages sustained are readily cognizable and not impossible or extremely difficult to calculate. Economic loss, which is compensable by money damages, does not constitute irreparable harm. Ed Cia Corp. v McCormack, 44 AD3d 991, 994 (2nd Dept. 2007). This is not a situation in which Defendants have used confidential propriety information (protected trade lists or confidential customers lists), ascertained by wrongful means, to woo clients away from Winters Bros. or where it would be impossible, or even extremely difficult, to calculate an award of damages sufficient to compensate Plaintiff for the loss of customer goodwill and/or clients should its tortious interference with contract claim be proven.

Notwithstanding a business's concern for protecting existing contractual relationships, a competitor's right to solicit business does not constitute inducement of breach of contractAs pointed out by the court in White Plains Coat & Apron Co., Inc. v Cintas Corp., supra at 427. A competitor's ultimate liability will depend on a showing that the inducement exceeded a minimal level of ethical behavior in the marketplace. [*4]

While Plaintiff argues that courts have found irreparable harm based on a loss of customer goodwill and existing customers to a competitor, the possibility of harm vis-a- vis lost "good will" and referral business in this case are overstated and unsubstantiated. It does not rise to the level sufficient to justify the imposition of the requested injunctive relief.

Accordingly, it is,

ORDERED, that Plaintiff's motion for a preliminary injunction is denied; and it is further,

ORDERED, that counsel for the parties shall appear for a preliminary conference on April 7, 2009 at 10:00 a.m.

This constitutes the decision and Order of the Court.

Dated: Mineola, NY_____________________________

March 13, 2009Hon. Leonard B. Austin, J.S.C.