CASITA v. MAP. EQU. PAR. LTD

The court providently exercised its discretion in granting plaintiff's application for preliminary injunctive relief upon its clear showing of a likelihood of success on the merits of its claim that defendant's calls for capital contributions (capital calls) were not authorized under the controlling articles of association and subscription agreement, that plaintiff would suffer irreparable injury unless the relief sought was granted, and that the balancing of the equities lies in favor of plaintiff ( see W.T. Grant Co. v Srogi, 52 NY2d 496, 517). The record evidence establishes that defendant's capital calls for litigation expenses and for "Follow-on Investments" were untimely, causing the potential for plaintiff's default and the loss of plaintiff's voting power and decision-making rights appurtenant to its shares.

Since the documentary evidence conclusively establishes that the capital calls issued for Follow-on Investments were untimely, the court properly granted plaintiff's cross motion to dismiss defendant's counterclaims for breach of contract and for a declaratory judgment that it was entitled to issue those capital calls.

[ See 17 Misc 3d 1137(A), 2007 NY Slip Op 52322(U).]