444 East 86th Owners Corp. v. 435 East 85th Street Tenants Corp.

Appellate Division of the Supreme Court of New York

444 East 86th Owners Corp. v. 435 East 85th Street Tenants Corp.

93 A.D.3d 588, 940 N.Y.S.2d 492

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 27, 2012

StatusPublished

This text of 93 A.D.3d 588 (444 East 86th Owners Corp. v. 435 East 85th Street Tenants Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

444 East 86th Owners Corp. v. 435 East 85th Street Tenants Corp., 93 A.D.3d 588, 940 N.Y.S.2d 492 (N.Y. Ct. App. 2012).

Pincite

Opinion

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered July 18, 2011, which denied plaintiffs motion for a [589]*589preliminary injunction to enjoin defendant from continuing to damage its garage roof, and continued and extended an earlier order, same court and Justice, entered on or about May 27, 2010, to the extent of directing that plaintiff commence the probes of the garage roof on August 1, 2011, unanimously affirmed, with costs.

As the court properly found, because there remained a difference of expert opinion regarding the cause and location of the water infiltration to the garage roof, the prior probe order must be continued to determine the party responsible for correcting the continuing water damage. In addition, as the court properly found, even if plaintiff could show that it was likely to succeed on the merits of its claim, it failed to demonstrate irreparable injury in the absence of an injunction and a balance of equities in its favor (see Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]; see also CPLR 6301). Indeed, the record shows that plaintiff failed to comply with the court’s prior probe order and that any injury could be compensated by monetary damages (see Famo, Inc. v Green 521 Fifth Ave. LLC, 51 AD3d 578 [2008]). Concur — Saxe, J.P, Sweeny, Catterson, Renwick and Manzanet-Daniels, JJ. [Prior Case History; 32 Miscv 3d 1232(A), 2011 NY Slip Op 51520(U).]

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Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered July 18, 2011, which denied plaintiffs motion for a [589]*589preliminary injunction to enjoin defendant from continuing to damage its garage roof, and continued and extended an earlier order, same court and Justice, entered on or about May 27, 2010, to the extent of directing that plaintiff commence the probes of the garage roof on August 1, 2011, unanimously affirmed, with costs.

As the court properly found, because there remained a difference of expert opinion regarding the cause and location of the water infiltration to the garage roof, the prior probe order must be continued to determine the party responsible for correcting the continuing water damage. In addition, as the court properly found, even if plaintiff could show that it was likely to succeed on the merits of its claim, it failed to demonstrate irreparable injury in the absence of an injunction and a balance of equities in its favor (see Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]; see also CPLR 6301). Indeed, the record shows that plaintiff failed to comply with the court’s prior probe order and that any injury could be compensated by monetary damages (see Famo, Inc. v Green 521 Fifth Ave. LLC, 51 AD3d 578 [2008]). Concur — Saxe, J.P, Sweeny, Catterson, Renwick and Manzanet-Daniels, JJ. [Prior Case History; 32 Miscv 3d 1232(A), 2011 NY Slip Op 51520(U).]

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Bluebook (online)

93 A.D.3d 588, 940 N.Y.S.2d 492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/444-east-86th-owners-corp-v-435-east-85th-street-tenants-corp-nyappdiv-2012.

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