SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SALSAS CASTILLO, S.A.P.I. DE C.V., Plaintiff, I.A.S. Part to be assigned - against - Index No. SICANA, INC., doing business as, THE INTERNATIONAL COURT OF ARBITRATION Motion Seq. No. 001 of THE INTERNATIONAL CHAMBER OF COMMERCE, and TRALJE INTERNATIONAL FINANCE, B.V., Defendants. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION Dated New York, New York October 15, 2017 DUANE MORRIS LLP 1540 Broadway New York, New York 10036 (212) 692-1000 Attorney for Plaintiff Salsas Castillo, S.A.P.I. de C.V. 1 of 16
Table of Contents Page TABLE OF AUTHORITIES... ii PRELIMINARY STATEMENT...1 STATEMENT OF FACTS...2 The Parties... 2 The Arbitration... 2 ARGUMENT...5 I. PLAINTIFF IS ENTITLED TO A TRO AND PRELIMINARY INJUNCTION...5 A. Plaintiff Salsas Castillo is Likely to Succeed on the Merits... 7 1. Plaintiff Salsas Castillo Is Likely to Succeed on Its Cause of Action for a Permanent Injunction... 7 2. Plaintiff Salsas Castillo Is Likely to Succeed on Its Cause of Action for a Declaratory Judgment... 10 B. Plaintiff Salsas Castillo Has Suffered and Will Continue to Suffer Irreparable Harm Absent Injunctive Relief... 10 C. The Balance of Equities Weighs in Favor of Salsas Castillo... 11 CONCLUSION...12 2 of 16
Table of Authorities Page(s) Cases 61 W. 62 Owners Corp. v. CGM EMP LLC, 77 A.D.3d 330, 906 N.Y.S.2d 549 (1st Dep t 2010), aff d, 16 N.Y.3d 822, 921 N.Y.S.2d 184 (2011)...5 Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 552 N.Y.S.2d 918 (1990)...5 Akos Realty Corp v. Vandemark, 157 A.D.2d 632, 550 N.Y.S.2d 650 (1st Dep t 1990)...6 Benishai ex rel. Benishai v. Benishai, 25 A.D.3d 385, 806 N.Y.S.2d 868 (1st Dep t 2006)...8 Bertisch v. Drory, 4 Misc. 3d 1023(A), 798 N.Y.S.2d 342 (Sup. Ct. N.Y. Co. 2004)...8 Bingham v. Struve, 184 A.D.2d 85, 591 N.Y.S.2d 156 (1st Dep t 1992)...7 Borenstein v. Rochel Props., Inc., 176 A.D.2d 171, 574 N.Y.S.2d 192 (1st Dep t 1991)...5 Byblos Bank Europe, S.A. v. Sekerbank Turk Anonym Syrketi, 10 N.Y.3d 243, 855 N.Y.S.2d 427 (2008)...7 Citigroup Glob. Markets, Inc. v. Fiorilla, No. 653017/2013, slip op. (Sup. Ct. N.Y. Co. Jan. 18, 2017) (Ramos, J.), aff d, 151 A.D.3d 665, 54 N.Y.S.3d 586 (1st Dep t 2017)...9, 11 City of New York v. Love Shack, 286 A.D.2d 240, 729 N.Y.S.2d 37 (1st Dep t 2001)...9, 11 Demartini v. Chatham Green, Inc., 169 A.D.2d 689, 565 N.Y.S.2d 712 (1st Dep t 1991)...7 Diorinou v. Mezitis, 237 F.3d 133 (2d Cir. 2001)...8 Dong-Pyo Yang v. 75 Rockefeller Cafe Corp., 50 A.D.3d 320, 855 N.Y.S.2d 84 (1st Dep t 2008)...5 ii 3 of 16
Page(s) Elow v. Svenningsen, 58 A.D.3d 674, 873 N.Y.S.2d 319 (2d Dep t 2009)...8 Four Times Square Assocs., L.L.C. v. Cigna Invs., Inc., 306 A.D.2d 4, 764 N.Y.S.2d 1 (1st Dep t 2003)...6 Greschler v. Greschler, 51 N.Y.2d 368, 434 N.Y.S.2d 194 (1980)...8 Greystone Staffing, Inc. v. Goehringer, No. 13906-06, 2006 WL 3802202 (Sup. Ct. Nassau Co. Nov. 27, 2006)...11 ICC Chemical Corp. v. TCL Indus. (Malaysia) SDN, 206 F. App x 68 (2d Cir. 2006)...8 Lemle v. Lemle, 92 A.D.3d 494, 939 N.Y.S.2d 15 (1st Dep t 2012)...9 McLaughlin, Piven, Vogel, Inc. v. W.J. Wolan & Co., 114 A.D.2d 165, 498 N.Y.S.2d 146 (2d Dep t 1986)...6, 7 N.Y. State Crime Victims Bd. v. Jackson, 4 A.D.3d 710, 772 N.Y.S.2d 419 (3d Dep t 2004)...6 Sebastian Holdings, Inc. v. Deutsche Bank, AG, 47 A.D.3d 706, 48 N.Y.S.3d 364 (1st Dep t 2017)...8 Segarra v. Ashouin, 253 A.D.2d 406, 676 N.Y.S.2d 594 (1st Dep t 1998)...6 Sur La Table Ltd. v. Rosenthal AG, 173 A.D.2d 325, 575 N.Y.S.2d 281 (1st Dep t 1991)...6 Wyndham Co. v. Wyndham Hotel Co., 236 A.D.2d 220, 653 N.Y.S.2d 852 (1st Dep t 1997)... 5-6 Statutes and Other Authorities C.P.L.R. 105(u)...2 C.P.L.R. 3001...10 C.P.L.R. 6301...1, 5, 6 C.P.L.R. 6312...1 C.P.L.R. 6313...1 iii 4 of 16
Plaintiff Salsas Castillo, S.A.P.I. de C.V. ( Salsas Castillo ), by and through its counsel Duane Morris LLP, respectfully submits this memorandum of law in support of its motion for a temporary restraining order and preliminary injunction pursuant to C.P.L.R. 6301, 6312 and 6313 against Defendants Sicana, Inc. ( Sicana ) doing business as the International Court of Arbitration of the International Chamber of Commerce (the ICC ) and Tralje International Finance, B.V. ( Tralje ) (collectively, Defendants ). PRELIMINARY STATEMENT Based on well-established principles of comity, Plaintiff Salsas Castillo seeks a temporary restraining order and preliminary injunction from this Court to enforce the binding and final Hearing and Incidental Resolution of the Honorable Domingo Romero Morales, Eleventh District Judge in the State of Sonora, Mexico dated June 1, 2017 (the Final Suspension Order ). By his Final Suspension Order, Judge Morales directed the ICC s appointed arbitrator, Victor M. Ruiz ( Arbitrator Ruiz ), to suspend arbitration 22156/ASM/JPA (the Arbitration ) brought by Defendant Tralje before the ICC in New York through Sicana, which is the provider of ICC arbitration and ADR services in North America. In flagrant disregard of the binding Final Suspension Order of Judge Morales, Arbitrator Ruiz and Defendant Tralje are currently proceeding with the Arbitration in Mexico, despite Plaintiff Salsas Castillo s refusal to appear and participate in the Arbitration and its requests that Sicana direct Arbitrator Ruiz to comply with the Final Suspension Order and suspend the Arbitration. The Arbitration is nearing conclusion and Plaintiff Salsas Castillo expects that Arbitrator Ruiz will render an award imminently. Plaintiff Salsas Castillo has suffered irreparable harm as a result of Defendants violation of the Final Suspension Order, and will 5 of 16
suffer additional irreparable harm in the event that this Court does not enjoin Defendants from continuing the Arbitration in violation of the Final Suspension Order. Consequently, Plaintiff Salsas Castillo respectfully requests that this Court grant its motion for temporary and preliminary injunctive relief, and also declare that any award rendered in violation of the Final Suspension Order is void and unenforceable. STATEMENT OF FACTS 1 The Parties Plaintiff Salsas Castillo is a food-processing corporation based in Sonora, Mexico. (Compl. 8.) Defendant Sicana is the provider of ICC arbitration and ADR services in North America. (Id. 9.) Defendant Tralje is, upon information and belief, a Mexican corporation with a principal place of business at Privada del Nino No. 676, Fraccionamiento Camino Real 45040 Zapopan, Jalisco, Mexico. (Id. 4.) The Arbitration On August 9, 2016, Tralje commenced the Arbitration by submitting a Request for Arbitration to Sicana in New York. (Compl. 10; Affirmation of Mexican Counsel 1.) On September 7, 2016, Salsas Castillo s Mexican counsel informed the ICC that it opposed the Arbitration because the arbitration provision is set forth in an ultra vires shareholders agreement (the Shareholders Agreement ). (Compl. 11.) On October 25, 2016, Salsas Castillo then brought a nullity and inexistence lawsuit in the First Commercial Court of the Judicial District of Hermosillo, Sonora, Mexico (the Commercial 1 Plaintiff Salsas Castillo respectfully refers the Court to the accompanying Verified Complaint ( Compl. ), Affirmation of Alejandro Elías Calles Káram and Mario Meléndez Mendívil dated October 13, 2017 ( Affirmation of Mexican Counsel ) and Affirmation of Evangelos Michailidis ( Michailidis Aff. ) for a full recitation of the relevant facts. See C.P.L.R. 105(u). 2 6 of 16
Court ) to dispute the validity of the Shareholders Agreement (the Nullity Lawsuit ). (Compl. 12; Affirmation of Mexican Counsel 3.) On November 4, 2016, Salsas Castillo obtained a court order suspending the Arbitration pending the adjudication of the Nullity Lawsuit (the Initial Suspension Order ). On December 8, 2016, Tralje appealed the Initial Suspension Order to the First Collegiate Regional Court of the First District of the State of Sonora (the Collegiate Court ). (Compl. 13-14; Affirmation of Mexican Counsel 5-7.) Salsas Castillo s counsel notified the ICC of the Initial Suspension Order and requested that the Arbitration not proceed pursuant to the Commercial Court s order. (Compl. 15.) Despite the Initial Suspension Order, the ICC notified the parties on December 1, 2016 that it had appointed Arbitrator Ruiz to be the sole arbitrator for the Arbitration. (Compl. 16; Affirmation of Mexican Counsel 9.) On December 30, 2016, Arbitrator Ruiz issued Procedural Order No. 1 in the Arbitration in which he rejected Salsas Castillo s request to suspend the Arbitration and, further, refused to abide by the terms of the Initial Suspension Order. (Compl. 17; Affirmation of Mexican Counsel 10.) On January 13, 2017, the Commercial Court issued an order directing Arbitrator Ruiz to comply with the Initial Suspension Order within twenty-four hours and warned of a potential fine and detention of up to thirty-six hours, as well as possible notification to the Public Prosecutor unless he complied. (Compl. 18; Affirmation of Mexican Counsel 11.) On February 14, 2017, the Commercial Court issued another order requiring Arbitrator Ruiz to refrain from continuing the Arbitration and warning him of arrest of up to thirty-six hours and possible 3 7 of 16
notification to the Public Prosecutor if he did not comply. (Compl. 19; Affirmation of Mexican Counsel 12.) On March 24, 2017, seemingly unfazed by the Commercial Court s orders and warnings of arrest, Arbitrator Ruiz notified Salsas Castillo that he would continue to proceed with the Arbitration as set forth in his Procedural Order No. 1. On March 27, 2017, Tralje prevailed on its appeal to the Collegiate Court. Salsas Castillo appealed the Collegiate Court s ruling to the Eleventh District Judge in the State of Sonora. (Compl. 20-21; Affirmation of Mexican Counsel 13-14.) On June 1, 2017, the Honorable Domingo Romero Morales, Eleventh District Judge in the State of Sonora, issued the Final Suspension Order granting Salsas Castillo s request to suspend the Arbitration pending the adjudication of the Nullity Lawsuit and ordering that a letter rogatory be issued by the District Civil Judge of Mexico City to notify Arbitrator Ruiz of the Final Suspension Order. The Final Suspension Order further directed that the March 27, 2017 ruling of the College Court granting Tralje s appeal is neither enforceable or effective pending the adjudication of the Nullity Lawsuit. Tralje was duly notified of the Final Suspension Order but has not appealed the Final Suspension Order. Therefore, it remains in full force and effect. (Compl. 22-24; Affirmation of Mexican Counsel 14.) Salsas Castillo s counsel notified the ICC and Arbitrator Ruiz of the Final Suspension Order and demanded that the Arbitration be suspended. Both the ICC and Arbitrator Ruiz have stated that they intend to proceed with the Arbitration. (Compl. 25-26.) 4 8 of 16
ARGUMENT I. PLAINTIFF IS ENTITLED TO A TRO AND PRELIMINARY INJUNCTION Section 6301 of New York Civil Practice Law and Rules establishes the statutory grounds for the issuance of a preliminary injunction. It provides in relevant part that A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff s rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff. C.P.L.R. 6301. A preliminary injunction will be granted where the movant shows (1) a likelihood of success on the merits; (2) danger of irreparable injury in the absence of an injunction; and (3) a balance of equities in its favor. Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 862, 552 N.Y.S.2d 918, 919 (1990); 61 W. 62 Owners Corp. v. CGM EMP LLC, 77 A.D.3d 330, 337, 906 N.Y.S.2d 549, 555 (1st Dep t 2010), aff d, 16 N.Y.3d 822, 921 N.Y.S.2d 184 (2011). The decision to grant a preliminary injunction lies within the sound discretion of this Court. Borenstein v. Rochel Props., Inc., 176 A.D.2d 171, 172, 574 N.Y.S.2d 192, 193 (1st Dep t 1991). As set forth in more detail below, Plaintiff Salsas Castillo meets the standard for obtaining preliminary injunctive relief directing Defendants to abide by the Suspension Order pending the adjudication of the Nullity Lawsuit. As with a preliminary injunction, the decision to grant a temporary restraining order also lies within the discretion of this Court. See Dong-Pyo Yang v. 75 Rockefeller Cafe Corp., 50 A.D.3d 320, 320, 855 N.Y.S.2d 84, 86 (1st Dep t 2008); Wyndham Co. v. Wyndham Hotel Co., 5 9 of 16
236 A.D.2d 220, 221, 653 N.Y.S.2d 852, 853 (1st Dep t 1997). A court should grant a temporary restraining order, where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had. N.Y. C.P.L.R. 6301. Courts will issue a temporary restraining order as a provisional remedy that maintains the status quo to permit adequate time for a final determination to be made. See Segarra v. Ashouin, 253 A.D.2d 406, 407, 676 N.Y.S.2d 594, 594 (1st Dep t 1998) (continuing temporary restraining order to maintain status quo); N.Y. State Crime Victims Bd. v. Jackson, 4 A.D.3d 710, 711, 772 N.Y.S.2d 419, 420 (3d Dep t 2004) (imposing temporary restraining order to maintain status quo). Here, absent a temporary restraining order, Defendants will proceed with the Arbitration in disregard of the Final Suspension Order and an award will be rendered in direct contravention of the Final Suspension Order. In determining Salsas Castillo s likelihood of success on the merits of its claims, the Court is not required to render a decision on the merits. Rather, a prima facie showing of a right to relief is sufficient; actual proof of the case should be left to further court proceedings. See Four Times Square Assocs., L.L.C. v. Cigna Invs., Inc., 306 A.D.2d 4, 6, 764 N.Y.S.2d 1, 3 (1st Dep t 2003) (stating well-settled principle that plaintiff need only set forth a prima facie case on the likelihood of success on the merits in order to establish entitlement to a preliminary injunction); Sur La Table Ltd. v. Rosenthal AG, 173 A.D.2d 325, 575 N.Y.S.2d 281 (1st Dep t 1991); Akos Realty Corp v. Vandemark, 157 A.D.2d 632, 634, 550 N.Y.S.2d 650, 652 (1st Dep t 1990); McLaughlin, Piven, Vogel, Inc. v. W.J. Wolan & Co., 114 A.D.2d 165, 172-73, 498 N.Y.S.2d 146, 151-52 (2d Dep t 1986) (same). As set forth below, Plaintiff Salsas Castillo has established a prima facie right to the requested relief. 6 10 of 16
A. Plaintiff Salsas Castillo is Likely to Succeed on the Merits To satisfy this element, Plaintiff Salsas Castillo need only show this it is more likely than not that it will prevail on its claims. See McLaughlin, Piven, 114 A.D.2d at 172, 498 N.Y.S.2d at 151. A judicial determination regarding likelihood of success on the merits does not amount to a predetermination of the issues, and the moving party s showing must not be equated with the showing of a certainty of success on the merits. Bingham v. Struve, 184 A.D.2d 85, 88-89, 591 N.Y.S.2d 156, 158 (1st Dep t 1992) (internal quotation marks & emphasis omitted); see also Demartini v. Chatham Green, Inc., 169 A.D.2d 689, 690, 565 N.Y.S.2d 712, 712 (1st Dep t 1991) (finding plaintiff demonstrated likelihood of success on the merits even though supporting evidence was not conclusive ). Here, Salsas Castillo can show far more than a prima facie right to relief on its claims. 1. Plaintiff Salsas Castillo Is Likely to Succeed on Its Cause of Action for a Permanent Injunction Plaintiff Salsas Castillo will likely prevail on its claim for a permanent injunction because the Final Suspension Order is entitled to enforcement against Defendants by this Court based on well-established principles of comity. Comity, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws. Byblos Bank Europe, S.A. v. Sekerbank Turk Anonym Syrketi, 10 N.Y.3d 243, 247, 855 N.Y.S.2d 427, 429 (2008) (quoting Hilton v. Guyot, 159 U.S. 113, 163-64 (1895)). Under the principle of comity, American courts generally defer to proceedings in foreign countries so long as the foreign court had proper jurisdiction and enforcement does not 7 11 of 16
prejudice the rights of the United States citizens or violate domestic public policy. Bertisch v. Drory, 4 Misc. 3d 1023(A), 798 N.Y.S.2d 342 (Sup. Ct. N.Y. Co. 2004); see also Greschler v. Greschler, 51 N.Y.2d 368, 376, 434 N.Y.S.2d 194, 198 (1980) (New York courts will accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States ); Sebastian Holdings, Inc. v. Deutsche Bank, AG, 47 A.D.3d 706, 706, 48 N.Y.S.3d 364, 365 (1st Dep t 2017); Benishai ex rel. Benishai v. Benishai, 25 A.D.3d 385, 806 N.Y.S.2d 868 (1st Dep t 2006) (affirming IAS court s extension of comity to Israeli court orders); Diorinou v. Mezitis, 237 F.3d 133, 139 (2d Cir. 2001) (under principles of comity, United States courts may exercise discretion to consider[] whether to accept the adjudication of a foreign tribunal on a cause of action or a particular issue ). Moreover, a party who properly appeared in the action is precluded from attacking the validity of the foreign country judgement in a collateral proceeding brought in the courts of this State. Greschler, 51 N.Y.2d at 376, 434 N.Y.S.2d at 198; see also ICC Chemical Corp. v. TCL Indus. (Malaysia) SDN, 206 F. App x 68 (2d Cir. 2006). Here, Plaintiff Salsas Castillo and Defendant Tralje have fully litigated the issue in the Nullity Lawsuit and exhausted the appeal process as relates to the Final Suspension Order. (Compl. 22-23; Aff. of Mexican Counsel 14; Michailidis Aff. Exs. B-E.) Plaintiff Salsas Castillo is likely to succeed on its cause of action for a permanent injunction because it has sufficiently alleged the violation of a right presently occurring, or threatened and imminent... that the plaintiff has no adequate remedy at law... that serious and irreparable injury will result if the injunction is not granted... and that the equities are balanced in the plaintiff s favor. Elow v. Svenningsen, 58 A.D.3d 674, 675, 873 N.Y.S.2d 319, 320 (2d 8 12 of 16
Dep t 2009) (quoting 67A N.Y. Jur. 2d Injunctions 153); see also Lemle v. Lemle, 92 A.D.3d 494, 500, 939 N.Y.S.2d 15, 21 (1st Dep t 2012) (same); cf. Citigroup Glob. Markets, Inc. v. Fiorilla, No. 653017/2013, slip op. (Sup. Ct. N.Y. Co. Jan. 18, 2017) (Ramos, J.) (injunction to prevent enforcement of vacated FINRA arbitration award and directing respondent to release any writs or process applicable to petitioner s assets), aff d, 151 A.D.3d 665, 54 N.Y.S.3d 586 (1st Dep t 2017). Plaintiff Salsas Castillo s entitlement to a permanent injunction is clear. Judge Morales, the Eleventh District Judge in the State of Sonora, held that the Arbitration must be suspended during the pendency of the Nullity Lawsuit. Defendants and Arbitrator Ruiz are violating the Final Suspension Order by continuing on with the Arbitration, and in the process stripping Plaintiff Salsas Castillo of the right to a fair adjudication of the matters and protections afforded by the Mexican judicial system. Plaintiff Salsas Castillo will continue to suffer irreparable harm if Defendants are permitted to proceed with the Arbitration in contravention of the Final Suspension Order. Consequently, principles of comity permit this Court to enforce the Final Suspension Order. Moreover, Plaintiff Salsas Castillo has no adequate remedy at law for Defendants ongoing and willful disregard of the Final Suspension Order. Finally, the balance of the equities tips decidedly in its favor because Defendants by definition come to this Court with unclean hands by virtue of their disregard of the Final Suspension Order. See City of New York v. Love Shack, 286 A.D.2d 240, 242, 729 N.Y.S.2d 37, 40 (1st Dep t 2001) ( [T]he equities are clearly in plaintiffs favor by reason of defendants unclean hands.... To deny such relief under these circumstances would be to encourage lawlessness in pursuit of commercial advantage. ). 9 13 of 16
Therefore, Plaintiff Salsas Castillo respectfully submits that this Court should find that Salsas Castillo is likely to prevail on its request for a permanent injunction based on comity principles. 2. Plaintiff Salsas Castillo Is Likely to Succeed on Its Cause of Action for a Declaratory Judgment The comity principles of militating in favor of a permanent injunction also make it likely that Plaintiff Salsas Castillo will prevail on its cause of action for a declaratory judgment that any award rendered in violation of the Final Suspension Order would be void and unenforceable. Pursuant to C.P.L.R. 3001, this Court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether further relief is or could be claimed. A declaration by this Court to establish that any award issued in violation of the Final Suspension Order would be void and unenforceable would serve to finalize the controversy between Plaintiff Salsas Castillo and Defendants as to the propriety of Defendants decision to disregard that order. Absent that, Defendants violation of the Final Suspension Order could potentially undermine the adjudication of the Nullity Lawsuit between Plaintiff Salsas Castillo and Defendant Tralje. Therefore, this Court should find that Salsas Castillo is likely to prevail on its cause of action for declaratory judgment. B. Plaintiff Salsas Castillo Has Suffered and Will Continue to Suffer Irreparable Harm Absent Injunctive Relief Plaintiff Salsas Castillo will suffer irreparable injury unless this Court issues a temporary restraining order and preliminary injunction directing Defendants to comply with the Final Suspension Order. Otherwise, as noted in Section A.1, above, Plaintiff Salsas Castillo is suffering and will continue to suffer irreparable harm as to its rights under the Final Suspension Order, and its concomitant right to be free from the specter of an improper award being rendered 10 14 of 16
in the Arbitration. Such imminent and impending harm may only be avoided if this Court was to grant a temporary restraining order and preliminary injunction directing Defendants to comply with the Final Suspension Order pending the adjudication of the Nullity Lawsuit. For similar reasons, a declaration that any such award would be void and unenforceable is vital to protect Plaintiff Salsas Castillo from the imminent threat that Defendant Tralje would seek to enforce an award issued in violation of the Suspension Order. Cf. Citigroup Glob. Markets, Inc. v. Fiorilla, supra. C. The Balance of Equities Weighs in Favor of Salsas Castillo Injunctive relief is proper upon a balancing of the equities. A plaintiff seeking an injunction must also show that the burden caused to the defendant by the imposition of the injunction is less than the harm caused to the plaintiff by the defendant s activities without the injunction sought. See Greystone Staffing, Inc. v. Goehringer, No. 13906-06, 2006 WL 3802202, at *5 (Sup. Ct. Nassau Co. Nov. 27, 2006). No harm can be done if the status quo is maintained, whereas irreparable injury may result if the requested relief is denied. Id. Here, the balance of equities weighs heavily in the favor of Plaintiff Salsas Castillo. Absent the issuance of a preliminary injunction and temporary restraining order by this Court, Salsas Castillo is in jeopardy of the loss of its rights under the Final Suspension Order to an adjudication in the Nullity Lawsuit. By contrast, the issuance of a temporary restraining order and preliminary injunction by this Court would only return the parties to the status quo as directed by the Final Suspension Order. Indeed, the only detriment that Defendants could conceivably claim is that they would no longer be able to flout the Mexican legal system to the detriment of Plaintiff Salsas Castillo. As a result, because they come to this Court with unclean hands, the equities clearly tip in Plaintiff Salsas Castillo s favor. City of N.Y. v. Love Shack, 286 A.D.2d at 242, 729 N.Y.S.2d at 40. 11 15 of 16
Therefore, because the current and potential harm threatened to Plaintiff Salsas Castillo is great, while the harm threatened to Defendants is virtually nonexistent, the balance of the equities tips decidedly in favor of Plaintiff Salsas Castillo. CONCLUSION For all of the foregoing reasons, Plaintiff Salsas Castillo respectfully requests that the Court issue a temporary restraining order and preliminary injunction and grant such other and further relief as this Court deems just and proper. Dated New York, New York October 15, 2017 Respectfully submitted, DUANE MORRIS LLP By s/ Evangelos Michailidis Evangelos Michailidis Ralph Carter 1540 Broadway New York, New York 10036-4086 Tel (212) 692-1000 Email emichailidis@duanemorris.com rcarter@duanemorris.com Attorneys for Plaintiff Salsas Castillo, S.A.P.I. de C.V. 12 16 of 16