WASHINGTON DELUXE BUS INC v. Zanvel Blusenstein, et al., appellants. (2008)

In an action, inter alia, for a permanent injunction, the defendants Zanvel Blusenstein, Vamoose, a/k/a Vamoosebus, and ExecuBus, Inc., appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated June 16, 2006, as granted the plaintiff's motion for a preliminary injunction enjoining them from operating a bus route between New York and Washington, D.C., and (2) from an order of the same court dated December 4, 2006, which denied their motion pursuant to CPLR 6314 to modify the preliminary injunction.

ORDERED that the order dated June 16, 2006, is affirmed insofar as appealed from;  and it is further,

ORDERED that the order dated December 4, 2006, is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the respondent.

 In order to obtain a preliminary injunction, the movant must demonstrate the likelihood of ultimate success on the merits, irreparable harm if the injunction is not granted, and a balancing of the equities in its favor (see W.T. Grant Co. v. Srogi, 52 N.Y.2d 496, 517, 438 N.Y.S.2d 761, 420 N.E.2d 953;  Lattingtown Harbor Prop. Owners Assn., Inc. v. Agostino, 34 A.D.3d 536, 538, 825 N.Y.S.2d 86).   The Supreme Court correctly determined that the plaintiff met its burden in this case.

 The plaintiff established the likelihood of success on the merits by demonstrating that the defendant Sharmash Bus Corporation was bound by a restrictive covenant not to compete with the subject bus route between New York and Washington, D.C., that the defendant Sol Wollner stole the plaintiff's customer list, and that the appellants knowingly used this stolen information to solicit the plaintiff's customers (see Ingenuit, Ltd. v. Harriff, 33 A.D.3d 589, 590, 822 N.Y.S.2d 301;  cf. Apa Sec., Inc. v. Apa, 37 A.D.3d 502, 831 N.Y.S.2d 201;  Michael G. Kessler & Assoc., Ltd. v. White, 28 A.D.3d 724, 725, 815 N.Y.S.2d 631;  Pearlgreen Corp. v. Yau Chi Chu, 8 A.D.3d 460, 778 N.Y.S.2d 516).   Secondly, the plaintiff came forward with strong evidence that the continued improper solicitation of its customers would result in irreparable harm (see Eastern Bus. Sys. v. Specialty Bus. Solutions, 292 A.D.2d 336, 338, 739 N.Y.S.2d 177).   Thirdly, the plaintiff established that the failure to grant the preliminary injunction would cause it greater harm than it would cause the appellants since the appellants were prohibited from operating only one of numerous bus routes, whereas the plaintiff's entire business consisted of this single bus route (see Laro Maintenance Corp. v. Culkin, 255 A.D.2d 560, 561, 681 N.Y.S.2d 79).

 The Supreme Court providently denied the appellants' motion to modify the preliminary injunction, as they failed to allege facts showing compelling or changed circumstances that would render continuation of the injunction in its present form inequitable (see Matter of Xander Corp. v. Haberman, 41 A.D.3d 489, 490-491, 838 N.Y.S.2d 133;  Thompson v. 76 Corp., 37 A.D.3d 450, 830 N.Y.S.2d 564;  Wellbilt Equip. Corp. v. Red Eye Grill, 308 A.D.2d 411, 765 N.Y.S.2d 490).

The appellants' remaining contentions are without merit.