DELTA FRANCHISING, INC. v. PCP TRANSMISSIONS

Order affirmed, insofar as appealed from, without costs or disbursements.

In view of the conflicting evidence in the record, it is impossible to ascertain which position the balance of equities favors. Moreover, defendants have failed to demonstrate the likelihood of ultimate success on the merits. Accordingly, their application for preliminary injunctive relief was properly denied (see Niagara Recycling v. Town of Niagara, 83 A.D.2d 316; Gambar Enterprises v. Kelly Servs., 69 A.D.2d 297).

It is clear from the parties' allegations that any rights which the various additional Delta Transmissions defendants may claim are derived solely from the rights which plaintiffs themselves claim. Accordingly, the counterclaims were properly asserted pursuant to CPLR 3019 (subd [a]) and the branch of plaintiffs' cross motion which sought their dismissal was properly denied.

We have considered the parties' remaining contentions and find them to be without merit. Titone, J.P., Mangano, Weinstein and Brown, JJ., concur.