J. A. Preston Corp. v. Fabrication Enterprises, Inc.

Callahan, J. P., and Doerr, J. (dissenting).

We respectfully dissent. The holding of the majority, which erroneously equates defendant’s entitlement to recover damages pursuant to CPLR 6312 (b) with whether defendant has prevailed on the merits, violates the holding of the Court of Appeals in Margolies v Encounter, Inc. (42 NY2d 475). The majority cites only one case at the appellate level for its premise that a judgment in favor of defendant constitutes a final decision that plaintiff was not entitled to a preliminary injunction (see, Dooley v Anton, 14 AD2d 60). However, this case was…