GAGNON BUS COMPANY INC v. VALLO TRANSPORTATION LTD (2004)

In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from so much of an order of the Supreme Court, Queens County (Polizzi, J.), dated October 7, 2003, as denied those branches of their motion which were for a preliminary injunction to enjoin the defendants from providing private bus service to students who live in Queens and attend the Bronx High School of Science and from soliciting customers for that service.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The Supreme Court providently exercised its discretion in denying those branches of the plaintiffs' motion which were for a preliminary injunction to enjoin the defendants from providing private bus service to students who live in Queens and attend the Bronx High School of Science and from soliciting customers for that service.   A party seeking the drastic remedy of a preliminary injunction must establish a clear right to that relief under the law and the undisputed facts upon the moving papers (see William M. Blake Agency, Inc. v. Leon, 283 A.D.2d 423, 723 N.Y.S.2d 871).   The burden of proof is on the movant to demonstrate a likelihood of success on the merits, the prospect of irreparable injury if the relief is withheld, and a balancing of the equities in the movant's favor (see Doe v. Axelrod, 73 N.Y.2d 748, 536 N.Y.S.2d 44, 532 N.E.2d 1272;  William M. Blake Agency v. Leon, supra;  Miller v. Price, 267 A.D.2d 363, 700 N.Y.S.2d 209).   Here, the parties dispute whether the plaintiffs have standing to enforce the noncompetition clause at issue (see Perma Pave Contr. Corp. v. Paerdegat Boat & Racquet Club, 156 A.D.2d 550, 549 N.Y.S.2d 57;  Lorisa Capital Corp. v. Gallo, 119 A.D.2d 99, 506 N.Y.S.2d 62;  Borne Chem. Co. v. Dictrow, 85 A.D.2d 646, 445 N.Y.S.2d 406).   They also dispute whether the defendants used any information they learned while they were subcontractors of the plaintiffs which constitutes a trade secret or confidential customer list (see BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 392, 690 N.Y.S.2d 854, 712 N.E.2d 1220;  Leo Silfen, Inc. v. Cream, 29 N.Y.2d 387, 328 N.Y.S.2d 423, 278 N.E.2d 636;  Starlight Limousine Serv. v. Cucinella, 275 A.D.2d 704, 713 N.Y.S.2d 195;  Howard Berger Co. v. Ye, 272 A.D.2d 445, 708 N.Y.S.2d 310;  IVI Envtl. v. McGovern, 269 A.D.2d 497, 707 N.Y.S.2d 107;  Gallagher & Co. of N.Y. v. Klymenko, 248 A.D.2d 497, 669 N.Y.S.2d 886).   Accordingly, the plaintiffs failed to demonstrate a likelihood of success on the merits based on undisputed facts (see Dental Health Assocs. v. Zangeneh, 267 A.D.2d 421, 701 N.Y.S.2d 106).   Moreover, the plaintiffs did not establish that they would sustain an irreparable injury in the absence of a preliminary injunction (see Neos v. Lacey, 291 A.D.2d 434, 737 N.Y.S.2d 394;  Price Paper & Twine Co. v. Miller, 182 A.D.2d 748, 582 N.Y.S.2d 746).

The plaintiffs' remaining contentions are without merit.