In an April 18, 2011 decision by Justice Driscoll the court vacated a temporary restraining order and denied a preliminary injunction enjoining and restraining the defendant from making statements about plaintiff’s allegedly improper business practices. The defendant did not submit any opposition to the motion, in part because he was incarcerated in jail in California. The court, nevertheless, denied the motion finding that the plaintiff failed to show a likelihood of success on the merits of its claims for trade libel, tortuous interference with business and prima facie tort.

Plaintiff’s application was supported by its verified complaint. While the defendant did not submit any opposition, the court noted that the defendant “expressed his intent to contest the allegations when he is released from jail.” The court found that given the prior business relationship between the parties, plaintiff’s termination of defendant’s employment and “the scienter that is required to prove the causes of action alleged” it could not “conclude at this juncture that plaintiff has demonstrated a likelihood of success on the merits” and, therefore, denied the motion.

MPG Assoc. Inc. v. Randone, Sup Ct, Nassau County, April 16, 2011, Driscoll, J, Index No. 8057-10.