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Century Ambulance Serv., Inc. v Aquino 2010 NY Slip Op 33276(U) November 17, 2010 Supreme Court, Nassau County Docket Number: 013427-08 Judge: Timothy S. Driscoll Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SCL
SUPREME COURT- STATE OF NEW YORK SHORT FORM ORDER Present:

HON. TIMOTHY S. DRISCOLL Justice Supreme Court
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CENTURY AMBULANCE SERVICE, INC. and DOMENICK MARINARO,

TRIAL/IAS PART: 22 NASSAU COUNTY
Index No: 013427-

Plaintiffs,
- against -

Motion Seq. No: 6
Submission Date: 11/5/10

ROBERT J. AQUINO a/ka ROBERT J. AQUINO, JR. CAS ACQUISITION, LLC; CAS ACQUISITION I, LLC d/b/a CENTURY AMBULANCE SERVICE; ABRAMS, FENS TERMAN, FENS TERMAN, EISMAN, GREENBERG, FORMATO & EINIGER, LLP; MARK ZAFRIN, ESQ. BARBAR STEGUN PHAIR, ESQ.; PINNACLE HEALTH CONSULTANTS, LLC; and ANDREW S. BLATT

Defendants.
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The following papers have been read on the Order to Show Cause:

Order to Show Cause, Affidavit in Support and Exhibits............... Affidavit in Opposition , Affirmation in Opposition and Exhibits..... Correspondence dated November 8, 2010...................................... Amended Exhibits to Plaintiffs ' Opposition................................... Plaintiffs' Memorandum of Law in Opposition.................................
This matter is before the Court for decision on the Order to Show Cause filed by
Defendants on June 4 , 2010 and submitted on November 5 , 2010. For the reasons set forth

below, the Cour denies Defendants ' Order to Show Cause.

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BACKGROUND
A.

Relief Sought

Defendants seek an Order , pursuant to CPLR 96301 and paragraph 13. 3 of the Operating
Agreement between the parties , enjoining Plaintiffs from operating any ambulance company and
interfering, in any manner , with CAS' management of the ambulance company pending the

resolution of this lawsuit , and directing Plaintiff Domenick Marinaro to execute all documents
necessar to enable Defendant CAS to operate the ambulance company pending the resolution of
this lawsuit.

Plaintiffs oppose Defendants ' application.
B.

The Paries '

History

1. Prior Decision
The paries '

history is outlined in detail in prior decisions (" Prior Decisions ) of the

Court in which the Court denied the applications of both paries. Those Prior Decisions include

1) a decision dated November 20 , 2009 (" 2009 Decision ) in which the Cour denied the

application by Plaintiffs Centur Ambulance Service , Inc. (" Centu") and Dominick Marinaro
Marinaro ) for injunctive relief, which included Plaintiffs ' request for an Order directing the

Defendants Robert J. Aquino a/k/a , Jr. (" Aquino ) and CAS Acquisition , LLC and CAS
Acquisition I , LLC d//a Centur Ambulance Service (" CAS") to cease and desist from:

a) exercising dominion and control over the assets of Centur including, but not limited to

Centur s ambulance and ambulette operating authority; and b) exercising control over Centur s ambulance and ambulette operations , and 2) a decision dated June 14 2010 (" 2010
Decision ) in which the Cour denied both a) Plaintiffs ' Order to Show Cause seeking parial

sumar judgment and certain injunctive relief, and b) Defendants ' cross motion seeking an
Order disqualifying Plaintiffs ' counsel , directing Plaintiff Marinaro to retur
allegedly frivolous conduct.
the

ambulance that

he had allegedly taken and awarding Defendant damages in the form of a sanction for Plaintiffs

As set forth in the Prior Decisions , Marinaro is the owner of all of the issued and
outstanding shares of Century, and has served as its sole director and only officer. Plaintiffs

fied an Amended Verified Complaint dated September 26 , 2008 that contains thirteen (13)
counts. The Complaint relates to Marinaro s transfer of his interest in Century to Aquino and

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CAS. In connection with that transfer , Marinaro and Century entered into an Asset Purchase
Agreement (" Purchase Agreement" ) with CAS dated July 12 2007. In addition , Century,

Marnaro and CAS entered into a Management Agreement (" Management Agreement" ) on the
same date. After execution of the Purchase and Management Agreements , but prior to Aquino
obtaining the necessar agency approvals , Aquino operated Century through CAS , pursuant to

the Management Agreement , which Aquino personally guaranteed. Plaintiffs alleged that , while

managing the business during this transition phase , Defendants engaged in the wrongful acts and conduct described in the Complaint that, unless enjoined , would cause irreparable har
Plaintiffs.

In the 2009 Decision , the Cour denied Plaintiffs ' application for injunctive relief based
on the Court' s conclusions that 1) in light of the factual disputes regarding the reasons that the

proposed sale did not close , Plaintiffs did not establish a likelihood of success on the merits;

2) in the absence of documentation supporting Plaintiffs ' claim that there was a danger of

revocation of their Operating Authorities , which they describe as Century s primary assets
Plaintiffs ' injur was compensable by money damages and , therefore , injunctive relief was

inappropriate; and 3) in light ofthe paries ' conflcting positions as to why the transaction did
not close ,

and most especially in light of the Cour' s conclusion that any har to Plaintiffs could

be redressed by money damages , the equities did not balance in Plaintiffs ' favor.

In the 2010 Decision , the Cour denied Plaintiffs ' application for injunctive relief based

on its determination that , in light of the factual disputes outlined at length in the 2009 Decision

and the Cour' s analysis in the 2009 Decision which was equally applicable to Plaintiffs
application at issue , Plaintiffs had not demonstrated a likelihood of success on the merits
irreparable har without injunctive relief or a balancing of the equities in their favor. The Cour

also concluded that these same factual disputes rendered sumar judgment inappropriate and
denied Plaintiffs ' motion for

sumar judgment.

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In his Affidavit in Support of the Order to Show Cause

sub judice

Aquino affirms as

follows:

Aquino submits that Plaintiffs have been dissatisfied with the Cour' s Prior Decisions
and " continues to engage in street tactics " (Aquino Aff. at
2). 1 Aquino alleges that Marinaro

to

has purchased or leased a new ambulance under the name of Century Ambulance Service
him and has

transferred the permits to the new ambulance , and cancelled Defendants ' permits. In addition Marinaro notified the United States Postal Service (" USPS" ) to deliver the mail

notified the telephone company to transfer the telephone lines to him. In support , Aquino
provides a letter from USPS dated May 25 2010 confirming that it reQeived a request to forward

mail for Centur Ambulance Inc. Aquino submits that , by so doing, Marinaro has committed a
fraud and created a life-threatening situation. It is unclear from this USPS documentation who

made the request, the address from which the request was made , and the address to which the
mail is to be forwarded.

Aquino outlines the factual background of this litigation and submits that , pursuant to the
Management Agreement ,

Defendants are entitled to injunctive relief. Aquino also provides

details regarding his conversation with a representative of the Deparment of Health (" DOH"

but does not provide an Affdavit of this individual. Accordingly, the Cour may not consider
this hearsay information , and the arguments based on it , in ruling on Defendants ' application.

In his Affidavit in Opposition, Marinaro argues , preliminarily, that the Cour should not
consider Defendants ' Order to Show Cause because it is not signed by Defendants ' attorney, and
does not contain the necessar certification by the attorney.

Marinaro notes , further , that Aquino s Affidavit is legally insuffcient both because it is based on hearsay, and because it is speculative and unsupported by probative evidence.
Marinaro
inter alia

1) disputes Aquino s allegations regarding the circumstances under which

applications for the renewal of Centur s ambulance operating authority were submitted to the

DOH; 2) disputes Aquino s claims regarding DOH' s rulings on those applications; 3) notes that

1 Aquino suggests that Plaintiffs are dissatisfied with the Court' s prior denial of Plaintiffs ' application for

injunctive relief and makes reference to a then-pending motion for an Order directing Marinaro to return an ambulance that he allegedly stole. The Court, in its 20 I 0 Decision , denied Defendants ' motion for an Order directing Plaintiff Marinaro to return the ambulance that he had allegedly taken.

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Aquino failed to provide an Affidavit from the DOH individual with whom he spoke; and
4) disputes Aquino s claim that if Defendants do not transport a patient in an ambulance for two
consecutive weeks , the DOH wil deem its operating certificate terminated.
C.

The Paries '

Positions

Defendants submit that the requested injunctive relief is appropriate in light of
Marinaro s allegedly improper conduct and Aquino s claim that Defendants wil
suffer

irreparable injury without the requested injunctive relief. Defendants provide no affdavits in
support oftheir claims with respect to the DOH and its position regarding the operating
certificates at issue.

Plaintiffs oppose Defendants ' application submitting,

inter alia that 1) Defendants have
without

produced no evidence in support of their claim that they wil suffer irreparable injur

injunctive relief; and 2) Aquino s allegations are based on hearsay and " supported solely by
uncorroborated anecdotal evidence " (Dinerstein Aff. in Supp. at ~ 18). Plaintiffs also argue that

the Cour lacks the authority to order the transfer of Plaintiffs ' ambulance and! or ambulance
operating authority.

RULING OF THE COURT
A.

Standards for Preliminar Injunction

A preliminar injunction is a drastic remedy and wil only be granted if the movant
establishes a clear right to it under the law and upon the relevant facts set forth in the moving
papers.

Wiliam M Blake Agency, Inc.
35

v.

Leon 283 AD.2d 423

424 (2d Dept. 2001);

Peterson

v.

Corbin 275 AD. 2d

36 (2d Dept. 2000). Injunctive relief wil lie where a movant

demonstrates a likelihood of success on the merits , a danger of irreparable har unless the
injunction is granted and a balance of the equities in his or her favor. Aetna Ins. Co. v.

Capasso

75 N. Y.2d 860 (1990);

WT. Grant Co.

v.

Srogi 52 N. Y.2d496 , 517 (1981);
Neos v. Lacey,

Merscorp,Inc.

Romaine

295 AD.2d 431 (2d Dept. 2002);

291 AD. 2d 434 (2d Dept. 2002).
Automated Waste Disposal, Inc.
City o/Long Beach v.

The decision whether to grant a preliminar injunction rests in the sound discretion of the
Supreme Cour. Doe v.

Axelrod 73 N. Y.2d

748 ,

750 (1988);

Mid-Hudson Waste, Inc. 50 A.

3d 1073 (2d Dept. 2008);

Sterling

American Capital, LLC 40 AD. 3d 902 , 903 (2d Dept. 2007);

Ruiz

v.

Meloney,

26 A.D.3d 485

(2d Dept. 2006).

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Proof of a likelihood of success on the merits requires the movant to demonstrate a clear
right to relief which is plain from the undisputed facts.

Related Properties,
Abinanti

Inc.

Town Bd of

Town/Vilage of Harrison 22 A.
396 (2d Dept. 2007);

3d 587 (2d Dept. 2005);

Pascale 41 AD. 3d 395
3d 334 335 (2d Dept.

Gagnon Bus Co. , Inc.

Vallo Transp. Ltd 13 A.

2004). Thus ,

while the existence of issues of fact alone wil not justify denial of a motion for a
on the merits to such a degree that it canot be said that the
Advanced Digital Sec. Solutions, Inc.
Milbrandt Co.

preliminary injunction , the motion should not be granted where there are issues that subvert the
plaintiffs likelihood of success
plaintiff established a clear right to relief.

Samsung

Techwin Co. ,

Ltd 53 AD.

3d 612 (2d Dept. 2008), quoting

Grifn

1 A.

327

328 (2d Dept. 2003);

see also

CPLR 9 6312(c).

A plaintiff has not suffered irreparable harm warranting injunctive relief where its
alleged injuries are compensable by money damages. See White Bay Enterprises v.

Newsday,

258 AD. 2d 520 (2d Dept. 1999) (lower cour' s order granting preliminar injunction reversed
where record demonstrated that alleged injuries compensable by money damages); Schrager

Klein 267 AD. 2d 296 (2d Dept. 1999) (lower cour' s order granting preliminar injunction

reversed where record failed to demonstrate likelihood of success on merits or that injuries were
not compensable by money damages).
B.

Application of these Principles to the Instant Action

The Cour notes that the Order to Show Cause at issue appears to be procedurally
defective as it is neither signed nor certified by counsel for Defendants.

Turning to the merits of Defendants ' application , the Cour concludes that Defendants
have provided vague , unsubstantiated assertions in support of their application , many of which

are based on inadmissible hearsay. Thus , Defendants have failed to demonstrate a likelihood of
success on the merits , and the Cour need not address the remaining factors relating to the

appropriateness of injunctive relief.

In light of the foregoing, the Cour denies Defendants ' Order to Show Cause in its
entirety .

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All matters not decided herein are hereby denied.
This constitutes the decision and order of the Court.

The Court reminds counsel for the paries of their required appearance before the Cour
on Januar 5

2011 at 9:30 a.

ENTER

DATED: Mineola, NY
November 17 2010

HON. TIMOTHY S. DRISC

lS.

ENTERED
NOV 23 2010
NASSAU COUNTY COUNTY CLERK'S OFFICE



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