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In the Matter of ADVANCED DIGITAL SECURITY SOLUTIONS, INC., Doing Business as SAMSUNG 360°, Appellant, v. SAMSUNG TECHWIN Co., LTD., Respondent.

Ordered that the order is affirmed, with costs.

As the respondent correctly contends, a party seeking relief under CPLR 7502 (c) "must also make a showing of the traditional equitable criteria for the granting of temporary relief under CPLR article 63" ( Winter v Brown, 49 AD3d 526, 529; see Matter of K.W.F. Realty Corp. v Kaufman, 16 AD3d 688, 689; Matter of Ottimo v Weatherly Sec. Corp., 306 AD2d 287, 287). To demonstrate entitlement to a preliminary injunction under CPLR 6301, the movant must demonstrate a probability of success on the merits, the danger of irreparable harm in the absence of an injunction, and a balance of the equities in favor of granting the injunction ( see Matter of K.W.F. Realty Corp. v Kaufman, 16 AD3d at 689-690; Olabi v May field, 8 AD3d 459, 459).

While the existence of issues of fact alone will not justify denial of a motion for a preliminary injunction, the motion should not be granted where there are issues that "subvert the plaintiffs likelihood of success on the merits . . . to such a degree that it cannot be said that the plaintiff established a clear right to relief ( Milbrandt Co. v Griffin, 1 AD3d 327, 328; see County of Westchester v United Water New Rochelle, 32 AD3d 979, 980). Here, the facts are in such sharp dispute that it cannot be said that the petitioner established a clear right to preliminary injunctive relief ( see Matter of Related Props., Inc. v Town Bd. of Town/Vil. of Harrison, 22 AD3d 587, 590; Sinensky v Rokowsky, 22 AD3d 563, 565; Blueberries Gourmet v Aris Realty Corp., 255 AD2d 348, 350). Accordingly, the Supreme Court did not err in denying the petitioner's motion.

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DIGITAL v. SAMSUNG
(Jul 22, 2008)