Appellate Division of the Supreme Court of New York, 2005

Icy Splash Food & Beverage, Inc. v. Henckel

Appellate Division of the Supreme Court of New York · Decided January 24, 2005

14 A.D.3d 595; 789 N.Y.S.2d 505; 2005 N.Y. App. Div. LEXIS 540

Cases that cite this one

24 later published cases cite this decision.

Merkos L'Inyonei Chinuch, Inc. v. Sharf (Appellate Division of the Supreme Court of New York 2009)
Cabrita v. Vitabyte, Inc. (New York Supreme Court, Queens County 2025)
People v. Trump (Appellate Division of the Supreme Court of New York 2025)
Fox v. Nocella (Appellate Division of the Supreme Court of New York 2025)
Lucas v. Verizon Communications, Inc. (Appellate Division of the Supreme Court of New York 2023)
159 Smith, LLC v. Boreum Hill Prop. Holdings, LLC (Appellate Division of the Supreme Court of New York 2021)
Matter of 144-80 Realty Assoc. v. 144-80 Sanford Apt. Corp. (Appellate Division of the Supreme Court of New York 2021)
Incorporated Vil. of Lindenhurst v. One World Recycling, LLC (Appellate Division of the Supreme Court of New York 2020)
Aponte v. Estate of Rene Aponte (Appellate Division of the Supreme Court of New York 2019)
Swartz v. Swartz (Appellate Division of the Supreme Court of New York 2016)
M.H. Mandelbaum Orthotic & Prosthetic Services, Inc. v. Werner (Appellate Division of the Supreme Court of New York 2015)
Oseff v. Scotti (Appellate Division of the Supreme Court of New York 2015)
Hamptons, LLC v. Zoning Board of Appeals of Incorporated Village of East Hampton (Appellate Division of the Supreme Court of New York 2012)
Hamptons, LLC v. Zoning Board of Appeals of Incorporated Village of East Hampton (Appellate Division of the Supreme Court of New York 2012)
Willow Woods Manufactured Homeowner's Ass'n v. R & R Mobile Home Park, Inc. (Appellate Division of the Supreme Court of New York 2011)
Arcamone-Makinano v. Britton Property, Inc. (Appellate Division of the Supreme Court of New York 2011)
Everest Reinsurance Co v. Wrynn (Appellate Division of the Supreme Court of New York 2011)
306 Rutledge, LLC v. City of New York (Appellate Division of the Supreme Court of New York 2011)
Hudson Valley Marine, Inc. v. Town of Cortlandt (Appellate Division of the Supreme Court of New York 2010)
Parry v. Murphy (Appellate Division of the Supreme Court of New York 2010)
Bonded Concrete, Inc. v. Town of Saugerties (Appellate Division of the Supreme Court of New York 2007)
Meccariello v. Meccariello (Appellate Division of the Supreme Court of New York 2007)
Riverside Capital Advisors, Inc. v. Winchester Global Trust Co. (Appellate Division of the Supreme Court of New York 2006)
Jones v. Corley (Appellate Division of the Supreme Court of New York 2006)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In an action, inter alia, to permanently enjoin the defendants from misappropriating the plaintiffs’ intellectual property and converting the plaintiffs’ assets, the defendants appeal from a judgment of the Supreme Court, Kings County (Schneier, J.), dated March 5, 2003, which, after a nonjury trial, permanently enjoined them from misappropriating the plaintiffs’ intellectual property and converting the plaintiffs’ assets.

Ordered that the judgment is reversed, on the law, with costs, the permanent injunction is vacated, and the complaint is dismissed.

*596Contrary to the defendants’ contention, the Supreme Court’s finding that the plaintiffs owned the corporate assets at issue was based upon a fair interpretation of the evidence (see Islamic Ctr. of Harrison v Islamic Science Found., 262 AD2d 362, 363 [1999]). However, since the plaintiffs failed to prove that the defendants misappropriated or converted those assets, the Supreme Court erred in granting them a permanent injunction.

The plaintiffs incorrectly assert that a determination by a different Supreme Court Justice (Belen, J.) granting them a pretrial preliminary injunction constitutes law of the case. Rather, “a preliminary injunction is a provisional remedy and a decision concerning a preliminary injunction does not become the law of the case, nor would it constitute an adjudication on the merits so as to preclude reconsideration of that issue at a trial on the merits” (Peterson v Corbin, 275 AD2d 35, 40 [2000]; see Preston Corp. v Fabrication Enters., 68 NY2d 397 [1986]; Moody v Filipowski, 146 AD2d 675, 678 [1989]). The purpose of a preliminary injunction is to preserve the status quo until a decision is reached on the merits (see Moody v Filipowski, supra at 678). A permanent injunction is a drastic remedy which may be granted only where the plaintiff demonstrates that it will suffer irreparable harm absent the injunction (see Kane v Walsh, 295 NY 198, 205-206 [1946]).

Although the plaintiffs presented evidence establishing their ownership of the subject corporate assets, including the trademark, they failed to prove by a preponderance of the evidence that the defendants misappropriated or converted such assets. Therefore, as the plaintiffs failed to meet their burden of proof regarding the alleged misappropriation and/or conversion of the corporate assets, and failed to demonstrate irreparable harm in the absence of an injunction, the Supreme Court’s award of a permanent injunction must be reversed.

The defendants’ remaining contentions are academic in light of oür determination. Florio, J.P., Schmidt, Adams and Cozier, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.