Petervary v. Bubnis

30 A.D.3d 498, 819 N.Y.S.2d 267

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 13, 2006
• Status: Published

Opinion

In an action for specific performance of a contract for the sale of real property, the plaintiff appeals, as limited by his brief, from so much of (1) an order of the Supreme Court, Suffolk County (Loughlin, J.), dated September 2, 2004, as denied his motion for a preliminary injunction, and (2) an order of the same court dated November 1, 2004, as denied his motion to extend a notice of pendency.

Ordered that the orders are affirmed insofar as appealed from, with one bill of costs.

The Supreme Court correctly declined to grant preliminary injunctive relief. To be entitled to preliminary injunctive relief, a movant must establish (1) the likelihood of success on the merits, (2) irreparable injury absent the granting of the preliminary injunction, and (3) a balancing of the equities in the movant’s favor (see W.T. Grant Co. v Srogi, 52 NY2d 496, 517 [1981]; Albini v Solork Assoc., 37 AD2d 835 [1971]). Here, the plaintiff failed to establish that he was likely to succeed on the merits and thus he failed to demonstrate a clear right to preliminary injunctive relief (see Popack v Rice, 261 AD2d 463 [1999]).

A notice of pendency is valid for three years from the date of filing and may be extended for additional three-year periods upon a showing of good cause (see CPLR 6513; Matter of Sakow, 97 NY2d 436, 442 [2002]). The plaintiff failed to establish good cause. The plaintiffs failure to submit records to the defendants in discovery in defiance of a court order was the cause of the delay that necessitated an extension of the notice of pendency (see Hall v Piazza, 260 AD2d 350 [1999]; Pontas Renovation v Kitano Arms Corp., 224 AD2d 349, 349-350 [1996]; Harlow Restoration Corp. v New York Tel. Co., 217 AD2d 405 [1995]).

Accordingly, the Supreme Court providently denied the plaintiffs motions for a preliminary injunction and an extension of the notice of pendency. Crane, J.E, Rivera, Skelos and Dillon, JJ., concur.