Triumph Enters. Corp. v. Webster Auto Repair & Serv. Ctr. Inc.

189 N.Y.S.3d 109, 216 A.D.3d 444, 2023 NY Slip Op 02398

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 4, 2023
• Docket: Index No. 34550/20E Appeal No. 192 Case No. 2021-03346
• Status: Published

Opinion

Triumph Enters. Corp. v Webster Auto Repair & Serv. Ctr. Inc. (2023 NY Slip Op 02398)

Triumph Enters. Corp. v Webster Auto Repair & Serv. Ctr. Inc.

2023 NY Slip Op 02398

Decided on May 04, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: May 04, 2023
Before: Manzanet-Daniels, J.P., Singh, Moulton, Rodriguez, Pitt-Burke, JJ.

Index No. 34550/20E Appeal No. 192 Case No. 2021-03346

[*1]Triumph Enterprises Corp., Plaintiff-Appellant,

v

Webster Auto Repair & Service Center Inc., Defendant-Respondent.

Novick Edelstein Pomerantz P.C., Yonkers (Lawrence Schiro of counsel), for appellant.

Green & Cohen, P.C., New York (Michael R. Cohen of counsel), for respondent.

Order, Supreme Court, Bronx County (RubÉn Franco, J.), entered on or about August 19, 2021, which denied plaintiff's motion to hold defendant in civil and criminal contempt of court for violating the court's prior March 22, 2021 order, and to amend the complaint, unanimously affirmed, without costs.

Plaintiff, a commercial tenant, moved to hold defendant landlord in contempt of an order that stayed defendant from engaging in any enforcement proceedings or activity under the terms of a notice to cure it had issued pending a hearing on plaintiff's motion for injunctive relief. The court properly determined that plaintiff failed to demonstrate a "clear right" to the requested relief (see Usina Costa Pinto, S.A. v Sanco Sav. Co., 174 AD2d 487, 488 [1st Dept 1991]). Plaintiff does not dispute that defendant demolished the premises, which were the subject of a Department of Buildings' emergency declaration and stop work order, before the stay order was issued. As for defendant's service of a petition and notice of petition in a pending holdover proceeding, defendant's counsel demonstrated that it was done in good faith, following discussions with plaintiff's counsel, and no prejudice was shown. Plaintiff shows no basis to disturb the court's finding that re-service of the petition and notice of petition, even if it occurred while the stay order was in effect, was done pursuant to an agreement by the parties' attorneys.

The court providently exercised its discretion in denying the motion to amend the pleadings to assert a claim for money damages in relation to the demolition of the building, since the application was not accompanied by amended pleadings and did not provide any specific information about the nature of the proposed claims (see CPLR 3025[b]; WVH Hous. Dev. Fund Corp. v Brooklyn Insulation & Soundproofing, Inc., 193 AD3d 523, 524 [1st Dept 2021]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 4, 2023