LLC v. And a Third Party Action. (2008)

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered August 15, 2007, which, insofar as appealed from as limited by the briefs, granted plaintiffs' motion for a preliminary injunction, inter alia, compelling defendant-appellant to deposit into a neutral escrow account the amount of funds he allegedly misappropriated, and to turn over to plaintiffs all papers and files he created or received in his representation of plaintiffs and certain entities, unanimously modified, on the law, to vacate the escrow directive, and otherwise affirmed, without costs.   Order, same court and Justice, entered September 21, 2006, which, insofar as appealed from, denied appellant's motion to renew the prior order's directive to turn over papers and files to plaintiffs, unanimously affirmed, without costs.

Supreme Court erred in directing appellant to place into an escrow account the funds he allegedly misappropriated since plaintiffs failed to make a clear showing that they would suffer irreparable injury unless that relief were granted, a necessary element on a motion for a preliminary injunction (see CPLR 6301;  Non-Emergency Transporters of N.Y. v. Hammons, 249 A.D.2d 124, 127, 672 N.Y.S.2d 16 [1998] ).   Specifically, plaintiffs failed to demonstrate that an award of monetary damages would not adequately compensate them (see U.S. Re Cos. v. Scheerer, 41 A.D.3d 152, 155, 838 N.Y.S.2d 37 [2007];  ERS Enters. v. Empire Holdings, 286 A.D.2d 206, 207-208, 729 N.Y.S.2d 23 [2001];  Non-Emergency Transporters of N.Y., supra;  cf. Sirius Satellite Radio v. Chinatown Apts., 303 A.D.2d 261, 261-262, 756 N.Y.S.2d 557 [2003] ).   At bottom, plaintiffs seek security for a potential money judgment against appellant, relief that should be sought under CPLR 6201 (attachment).   In light of our conclusion that plaintiffs failed to make a clear showing that they would suffer irreparable injury unless appellant were directed to place the funds in escrow, we need not and do not pass on whether plaintiffs established a likelihood of success on the merits and a balancing of the equities in their favor.

With respect to the directive to turn over files, we reject appellant's arguments that the court's prohibition against him holding himself out as the entities' attorney created a retaining lien over the files that did not previously exist and thus could not have been asserted on the original motion.   In any event, appellant has turned over copies of his complete legal file to plaintiffs, losing whatever leverage a retaining lien affords a discharged attorney.