Opinion
February 2, 1990
Appeal from the Supreme Court, Ontario County, Henry, Jr., J.
Present — Callahan, J.P., Boomer, Pine, Balio and Davis, JJ.
Order unanimously reversed on the law with costs and defendants' motion granted. Memorandum: It was an improvident exercise of discretion for Supreme Court to deny defendants' motion to vacate or modify the preliminary injunction previously granted in this case. Initially, we note that defendants are clearly entitled to make such an application (see, CPLR 6314) and this court has the same discretion as Special Term in deciding whether to vacate or modify the previously issued preliminary injunction (Matter of Attorney-General of State of N Y v Katz, 55 N.Y.2d 1015, 1017).
Plaintiffs' action is essentially one for breach of contract for the sale of a business. Injunctive relief is not appropriate in actions involving breach of contract where a plaintiff has an adequate remedy at law (see, Chicago Research Trading v New York Futures Exch., 84 A.D.2d 413, 416; Haulage Enters. Corp. v Hempstead Resources Recovery Corp., 74 A.D.2d 863, 864). The facts with respect to whether the Poitrases made any misrepresentations as to the validity of a so-called extension agreement executed by Buffalo Raceway are sharply in dispute and, under such circumstances, a preliminary injunction should not be granted (see, Newco Waste Sys. v Swartzenberg, 125 A.D.2d 1004, 1005; Family Affair Haircutters v Detling, 110 A.D.2d 745, 747). Moreover, a letter of credit is completely independent of the contract between the customer and the beneficiary (see, UCC 5-114 ; O'Meara Co. v National Park Bank, 239 N.Y. 386, rearg denied 240 N.Y. 607; Chiat/Day Inc., Adv. v Kalimian, 105 A.D.2d 94, 96). Payment of a letter of credit may be enjoined only where "active intentional fraud" is shown (Chiat/Day Inc., Adv. v Kalimian, supra, at 97); there has been no such allegation here.