This matter was originally assigned to Hon. Charles D. Wood, Supreme Court of the State of New York, Dutchess County. By decision and order dated March 14, 2011, Justice Wood recused himself and the matter was reassigned to this part. At the time the matter was reassigned there were pending two motions.

The petitioner moves, by order to show cause, for an order: (i) allowing the petitioner access to the premises, records, and books of the business known as Mahoney's at Dooley Square (hereinafter "Mahoney's"); (ii) enjoining the respondent from tampering with the corporate records of Mahoney's; and (iii) relieving Donald Feerick, Jr., Esq., as counsel for Mahoney's. The respondent cross moves for an order dismissing the action due to lack of: (i) subject matter jurisdiction; (ii) personal jurisdiction; (iii) standing; and (iv) the equities supporting the relief requested.

The respondent's cross motion dismissing the action due to a [*2]

lack of subject matter jurisdiction is granted.^[FN1] The fundamental purpose of a preliminary injunction is to preserve the status quo in an action until a final decision is rendered (City of Long Beach v Sterling Am. Capital, LLC, 40 AD3d 902 [2d Dept 2007]; Kelley v Garuda, 36 AD3d 593, 596 [2d Dept 2007]). It is settled that an action is commenced with the filing of a summons and complaint or summons with notice (CPLR § 304; see Micro-Spy, Inc. v Small, 9 AD3d 122, 125 [2d Dept 2004]). CPLR § 6301 provides that a "preliminary injunction is only available in a pending action" (Happy Age Shops, Inc. v Matyas, 128 AD2d 754 [2d Dept 1987]; see Hart Island Committee v Koch, 150 AD2d 269, 272 [1st Dept 1989]; Sibley v Lake Ann Realty Corp., 136 AD2d 619 [2d Dept 1988]). In this case, no summons and complaint or summons with notice was served upon the respondent.^[FN2] Thus, the court lacks subject matter jurisdiction in this case as the existence of an action is an indispensable prerequisite to the granting of the requested relief.The Court has considered the remainder of the factual and legal contentions of the parties and to the extent not specifically addressed herein, finds them to be either without merit or rendered

moot by other aspects of this Decision.

The Court read and considered the following documents upon this application:

PAGES NUMBERED

1.Order to Show Cause......................1-2

Affirmation-Minard..................1-8

Affidavit-Dooley....................1-4

Exhibits............................A-E

2.Notice of Cross-Motion...................1-2

Affirmation-Feerick.................1-13

Exhibits............................A-O

3.Affirmation in Opposition to Cross-

Motion-Minard............................1-6

Exhibits............................1 [*3]

3.Reply Affirmation-Feerick................1-6

Exhibits............................A

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

March 22, 2011

ENTER

HON. JAMES D. PAGONES, A.J.S.C.