Opinion
12858 Index No. 159073/19 Case No. 2020-01552
01-12-2021
AVENUE A ASSOCIATES LP, Plaintiff–Appellant, v. BOARD OF MANAGERS OF the HEARTH HOUSE CONDOMINIUM, et al., Defendants–Respondents.
Starr Associates LLP, New York (Andrea L. Roschelle of counsel), for appellant. Abrams Garfinkel Margolis Bergson, LLP, New York (Barry G. Margolis of counsel), for respondents.
Starr Associates LLP, New York (Andrea L. Roschelle of counsel), for appellant.
Abrams Garfinkel Margolis Bergson, LLP, New York (Barry G. Margolis of counsel), for respondents.
Acosta, P.J., Webber, González, Scarpulla, JJ.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered January 17, 2020, which denied plaintiff's motion for a preliminary injunction and granted defendants' cross motion to dismiss the complaint, unanimously affirmed, with costs.
To obtain a preliminary injunction, the movant "must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor" ( 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] ). None of these elements are present here, and thus, the court providently exercised its discretion in denying the motion for a preliminary injunction (see Kazdin v. Putter, 177 A.D.2d 456, 457, 576 N.Y.S.2d 516 [1st Dept. 1991] ).
Plaintiff has not demonstrated a likelihood of success on the merits based on the unambiguous terms of the Condominium's Declaration and By–Laws, which constitute a binding contract ( Pomerance v. McGrath, 124 A.D.3d 481, 482, 2 N.Y.S.3d 436 [1st Dept. 2015], lv dismissed 25 N.Y.3d 1038, 10 N.Y.S.3d 521, 32 N.E.3d 958 [2015] ). The motion court properly interpreted the Condominium's Declaration and By–Laws to conclude that plaintiff did not meet its burden of showing that it was permitted to install the vent stack at issue. The Declaration plainly precludes this type of intentional encroachment on the Residential Unit.
The court also properly concluded that plaintiff did not establish that it would suffer irreparable harm in the absence of injunctive relief. While plaintiff contends that its tenant stands to suffer the forfeiture of its investment and business, the tenant is not a party to this action, and plaintiff's only business as the landlord of this tenant is to collect rent. The irreparable injury element is not satisfied where lost profits can be compensated with a future award of money damages (see e.g. Buchanan Capital Mkts., LLC v. DeLucca, 144 A.D.3d 508, 41 N.Y.S.3d 229 [1st Dept. 2016] ). While plaintiff relies on certain provisions of the By–Laws stating that the tenant (as lessee) has equal rights to plaintiff under the governing documents, these provisions do not equate plaintiff's economic damages to those that its tenant allegedly suffered.
Nor did the motion court improvidently exercise its discretion in finding that plaintiff failed to show that a balancing of the equities favored its position. Defendants were acting within their rights under the Declaration, and plaintiff's loss of rental income is directly attributable to its decision to lease the Commercial Unit to a tenant that required an extensive exhaust system to operate a commercial kitchen space.
Further, the motion court properly granted defendants' cross motion to dismiss the complaint. Plaintiff's breach of contract and permanent injunction claims are conclusively refuted by the Declaration and By–Laws, and the cause of action for a declaration is duplicative. With respect to the tortious interference with contract claim, plaintiff failed to sufficiently allege that defendants intentionally procured a breach of its contract with its tenant without justification (see e.g. Oddo Asset Mgt. v. Barclays Bank PLC, 19 N.Y.3d 584, 594, 950 N.Y.S.2d 325, 973 N.E.2d 735 [2012] ). Nor has plaintiff stated a claim for breach of fiduciary duty against defendants.
We have considered plaintiff's remaining contentions and find them unavailing.