In Sumiko Enterprises, Inc. v. Town Realty Co., 259 A.D.2d 483, 686 N.Y.S.2d 94 [2d Dept., 1999], the plaintiff commenced an action for a judgment declaring that an option period under a certain agreement between the parties did not expire until a specific time later than that claimed by the defendants, and enjoining the defendants from interfering with the plaintiff's rights under the agreement.

The trial court denied plaintiff's motion for a preliminary injunction enjoining the sale of the property which was the subject of the agreement.

On appeal, the Second Department affirmed, stating that the Supreme Court properly exercised its discretion in denying the plaintiff's motion for a preliminary injunction. Although the option agreement executed by the parties in December 1995 stated on its face that the option period would expire on December 31, 1998, in opposition to the plaintiff's motion for a preliminary injunction, the defendants submitted documentary evidence indicating that the parties actually agreed upon a two-year option period, to expire on December 31, 1997.

The defendants produced an affidavit from the plaintiff's former attorney, stating that it was his understanding that the term of the option agreement would be a period of two years. In view of the sharp factual dispute regarding whether the December 31, 1998, date which appears in the option agreement is a scrivener's error which may be corrected by reformation of the agreement, we cannot conclude that the plaintiff met its burden of demonstrating an ultimate likelihood of success on the merits. (Sumiko, 259 A.D.2d at 483.)