The following e-filed documents, listed by NYSCEF document number (Motion 014) 352, 353, 354, 355, 356, 357, 359, 360 were read on this motion to/for INJUNCTION/RESTRAINING ORDER. DECISION + ORDER ON MOTION Upon the foregoing documents, the Defendants’ request for a restraining order pursuant to CPLR 5229 is granted. Summary judgment was granted in favor of the Defendants on the issue of liability, dismissing Screen Media’s complaint in its entirety, and referring the only remaining question (i.e., determination of the Defendants’ damages) to a JHO/Special Referee (NYSCEF Doc. No. 343; the Decision; Screen Media Ventures, LLC v. Capella Intl., Inc., 219 AD3d 425, 425 [1st Dept 2023]). Indeed, and significantly, on the record before the Court, the Defendants would have been entitled to a judgment on the issue of damages too but for Screen Media’s sanctionable conduct. To wit, throughout the course of this protracted litigation, Screen Media delayed or otherwise refused to provide records necessary for a proper accounting, occasioning sanctions (see NYSCEF Doc. Nos. 77 & 104). It was for precisely this reason that the Decision required Screen Media to serve a proposed accounting, rather than Defendants. Screen Media may not now claim that the harm from an injunction would be “completely disproportionate to the amount of damages at issue in the litigation” (see NYSCEF Doc. No. 359, page 6) when its own conduct has stymied the calculation of those damages. CPLR 5229 provides: In any court, before a judgment is entered, upon motion of the party in whose favor a verdict or decision has been rendered, the trial judge may order examination of the adverse party and order him restrained with the same effect as if a restraining notice had been served upon him after judgment. The Defendants are unquestionably the prevailing party entitled to judgment on the issue of liability. Although there is no explicit requirement set forth in CPLR 5229 that the prevailing party submit definitive evidence that assets are being disposed of or diverted prior to obtaining injunctive relief (Gallegos v. Elite Model Mgt. Corp., 1 Misc 3d 200, 207 [Sup Ct 2003]), the record evidence indicates concealment of assets and revenues due the Defendants together with the shifting of assets by Screen Media and its parent company, the potential de-listing of the parent company because of the failure to meet valuation requirements and the potential shedding of assets necessary to satisfy the judgment (see NYSCEF Doc. No. 354, page 3). The Defendants shall post a $5,000 bond by November 30, 2023, in support of this injunction. Accordingly, it is ORDERED that Screen Media, and any and all of their respective members, managers, employees, agents and any other person or entity acting in concert with them are restrained and forbidden from making or suffering any sale, assignment, transfer, or interference with any property or assets in which Screen Media has an interest in the same manner and with the same effect as if a restraining notice under CPLR 5222 had been served upon them after an entry of a money judgment; and it is further ORDERED that Defendants shall post bond in the amount of $5,000 by November 30, 2023. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: October 30, 2023
