Sat 07/08/2017 08:05 AM
On Friday, the holdout plaintiffs in
Eaton Vance et al. v. WSFS et al. filed
notice that they "hereby appeal to the Appellate Division of the Supreme Court of the State of New York, First Judicial Department,
from each and every part of the Decision and Order of Honorable Shirley Werner Kornreich of the Supreme Court of the State of New York, County of New York, dated June 28, 2017...and the transcript of the hearing held before the Court on June 28, 2017, filed on June 29, 2017...which denied Plaintiffs’ [order to show cause seeking a] temporary restraining order and preliminary injunction" (emphasis added).
In a
civil appeal pre-argument statement, the Eaton Vance and Highland Capital plaintiffs say that Judge Kornreich erred in
denying the plaintiffs'
order to show cause for reasons which include, but are not necessarily limited to:
- "The Court erred in determining that Plaintiffs did not establish that they would be irreparably harmed in the absence of a preliminary injunction because, among other reasons,
- (i) the Court ignored the controlling line of case law that irreparable harm is found where a lender will be deprived of negotiated rights under a lending agreement; and
- (ii) the Court credited, without rational basis, testimony provided in affidavits by officers of the Borrower that the transactions which Plaintiffs seek to enjoin can be 'easily' unwound;
- The Court erred in determining that the Plaintiffs failed to meet their burden to establish that the balance of the equities favors Plaintiffs by crediting, without basis, Defendants’ bald assertions that the transactions sought to be enjoined were urgent and could not be deferred.
- The Court abused its discretion in refusing to consider the expert affidavit of David E. Yurkerwich in support of Plaintiffs’ motion for preliminary injunction;
- The Court abused its discretion in refusing to conduct an evidentiary hearing on Plaintiffs’ order to show cause seeking a preliminary injunction; and
- The Court erred in determining that Plaintiffs failed to establish a likelihood of success on the merits" (emphasis added).
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