Joseph v. Solow Building Co.

Appellate Division of the Supreme Court of New York

Joseph v. Solow Building Co.

284 A.D.2d 214, 726 N.Y.S.2d 642, 2001 N.Y. App. Div. LEXIS 6509

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

DecidedJune 19, 2001

StatusPublished

This text of 284 A.D.2d 214 (Joseph v. Solow Building Co.) 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

Joseph v. Solow Building Co., 284 A.D.2d 214, 726 N.Y.S.2d 642, 2001 N.Y. App. Div. LEXIS 6509 (N.Y. Ct. App. 2001).

Pincite

Opinion

—Orders, Supreme Court, New York County (Ira Gammerman, J.), entered January 23 and January 26, 2001, which denied plaintiffs’ motion for a preliminary injunction to enjoin defendant PNC Bank, N.A. from honoring a letter of credit drawn in favor of defendant Solow Building Company, L. L. C., unanimously affirmed, without costs.

Preliminary injunctive relief was properly denied since plaintiff movants failed to demonstrate (1) a likelihood of success on the merits; (2) that they will suffer irreparable harm in the absence of injunctive relief; and (3) a balancing of the equities in. their favor (see, Maltby v Harlow Meyer Savage, 223 AD2d 516, lv dismissed 88 NY2d 874). There is no merit to plaintiffs’ argument that an “Event of Default” did not occur [215]*215under the subject lease agreement upon the filing of a petition for liquidation and ancillary bankruptcy petition by the lease guarantor. The guarantor was deemed to be a “tenant” under the default provision of the lease and the filing of a bankruptcy petition by a “tenant” was plainly an “Event of Default” pursuant to section 16.1 (E) of the lease. Accordingly, defendant landlord was entitled to the security agreed upon, and did not misrepresent the “tenant’s” default in its presentment to the bank for payment on the letter of credit (see, Mennen v J. P. Morgan & Co., 91 NY2d 13, 19-22).

We have considered plaintiffs’ remaining arguments and find them unavailing. Concur — Rosenberger, J. P„, Williams, Tom, Wallach and Friedman, JJ.

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—Orders, Supreme Court, New York County (Ira Gammerman, J.), entered January 23 and January 26, 2001, which denied plaintiffs’ motion for a preliminary injunction to enjoin defendant PNC Bank, N.A. from honoring a letter of credit drawn in favor of defendant Solow Building Company, L. L. C., unanimously affirmed, without costs.

Preliminary injunctive relief was properly denied since plaintiff movants failed to demonstrate (1) a likelihood of success on the merits; (2) that they will suffer irreparable harm in the absence of injunctive relief; and (3) a balancing of the equities in. their favor (see, Maltby v Harlow Meyer Savage, 223 AD2d 516, lv dismissed 88 NY2d 874). There is no merit to plaintiffs’ argument that an “Event of Default” did not occur [215]*215under the subject lease agreement upon the filing of a petition for liquidation and ancillary bankruptcy petition by the lease guarantor. The guarantor was deemed to be a “tenant” under the default provision of the lease and the filing of a bankruptcy petition by a “tenant” was plainly an “Event of Default” pursuant to section 16.1 (E) of the lease. Accordingly, defendant landlord was entitled to the security agreed upon, and did not misrepresent the “tenant’s” default in its presentment to the bank for payment on the letter of credit (see, Mennen v J. P. Morgan & Co., 91 NY2d 13, 19-22).

We have considered plaintiffs’ remaining arguments and find them unavailing. Concur — Rosenberger, J. P„, Williams, Tom, Wallach and Friedman, JJ.

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Bluebook (online)

284 A.D.2d 214, 726 N.Y.S.2d 642, 2001 N.Y. App. Div. LEXIS 6509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joseph-v-solow-building-co-nyappdiv-2001.

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