Opinion
2012-03-27
444 EAST 86TH OWNERS CORP., Plaintiff–Appellant, v. 435 EAST 85TH STREET TENANTS CORP., Defendant–Respondent.
Dunnington Bartholow & Miller, LLP, New York (Carol A. Sigmond of counsel), for appellant. Gallet Dreyer & Berkey, LLP, New York (Joseph V. Aulicino of counsel), for respondent.
Dunnington Bartholow & Miller, LLP, New York (Carol A. Sigmond of counsel), for appellant. Gallet Dreyer & Berkey, LLP, New York (Joseph V. Aulicino of counsel), for respondent.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered July 18, 2011, which denied plaintiff's motion for a preliminary 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 N.Y.3d 839, 840, 800 N.Y.S.2d 48, 833 N.E.2d 191 [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 A.D.3d 578, 859 N.Y.S.2d 131 [2008] ).