Opinion
Index No. 504261/2024 Motion Seq No. 1
07-16-2024
BOARD OF MANAGERS OF THE 19TH AVENUE CONDOMINIUM, Plaintiff, v. 19th AVE PROPERTIES LLC, BERNARD JACOBOWITZ, DAVID JACOBOWITZ and JOEL BRAVER, Defendants., 19th AVE PROPERTIES LLC, BERNARD JACOBOWITZ, DAVID JACOBOWITZ and JOEL BRAVER, Third-Party- Plaintiffs, v. HTLINE CONSTRUCTION INC. n/k/a HC MERGER LLC, SANDSTONE STRUCTURES LLC, SOLOMON BANDA, KARL FISCHER ARCHITECT PLLC a/k/a KARL FISCHER ARCHITECTURE PLLC, FISCHER AND MAKOOI ARCHITECTS PLLC, FABRIKA MAKOOI, CLEAR BLUE INSURANCE CO., HANOVER INSURANCE CO., and HUDSON EXCESS INSURANCE CO., Third-Party Defendants,
Unpublished Opinion
PRESENT: HON. LEON RUCHELSMAN J.
DECISION AND ORDER
HON. LEON RUCHELSMAN JSC
The plaintiff has moved seeking a preliminary injunction pursuant to CPLR §6301. The defendants have opposed the motion. Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now makes the following determination.
The defendant 19th Avenue Properties LLC acquired the subject building on June 27, 2016 Thereafter, the defendant sponsored the offering of units pursuant to: a condominium plan. The offering plan was approved and 164 were offered for sale.
Construction, commenced and was completed and all were sold by February 2024. This lawsuit was instituted wherein the plaintiff an association of unit owners, alleges the building was constructed with defects and thus the sponsor breached the offering plan, engaged in fraud and breach of a fiduciary duty among other causes of action. This motion seeking a mandatory injunction has been filed. The plaintiff seeks to compel the defendant to erect a safety shed around the perimeter of the entire building to protect the public from falling bricks. The defendant concedes that repairs are necessary but dispute the extent of such repairs. In any event, the New York City Department of Buildings has issued four summonses against the. sponsor for falling bricks and the failure to remedy the" situation. The most recent summons was issued on February 15, 2024. Thus the plaintiff seeks to compel the defendant to erect a protective shed to secure the safety of the public. As noted, the motion is opposed on the grounds, the plaintiff has prevented the necessary repairs from -taking place and "therefore the true motive of the plaintiff is merely money damages which is not a proper basis upon which to secure any injunction.
Conclusions of Law
C-PLR §6301, as it pertains to this case, permits the court to issue a preliminary injunction "in any action where the plaintiff has demanded and would be entitled to a judgment restraining defendant from the commission or the continuance of an act, which, if committed or continued during the pendency of the -action,; would produce injury to the plaintiff" (id) A party seeking a preliminary injunction "must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of the injunction and a balance of the equities in its favor" (Nobu Next Door, LLC v. Fine Arts Hosing, Inc., 4 N.Y.3d 839; 800 N.Y.S.2d 48 [2005], see also, Alexandru v. Pappas, 68 A.D.3d 690, 890 N.Y.2d 593 [2d Dept., 2009]). Further, each of the above elements must be proven by the moving party with "clear and convincing evidence" (Liotta v. Mattone, 71 AD.3d 741, 900 N.Y.S.2d 62 [2d Dept., 2010]). Moreover, the plaintiff also seeks to impose upon the. defendant a mandatory injunction requiring the defendant to erect a protective shed.
A mandatory injunction is rarely granted and only under unusual circumstances to maintain, the status quo pending trial (Matos v. City of New York, 21 A.D.3d 936, 801 N.Y.S.2d 610 [2d Dept., 2005]).Thus, where a party is engaged in unlawful conduct which is continuous then a mandatory injunction is proper (Rosenthal v. Heifer, 136: Misc.2d 9, 516 N.Y.S.2d 1020 [Civil Court New York County, 1987]): Furthermore, a mandatory injunction is proper where the public safety is at risk. In Doe v. Dinkins, 192 A.D.2d 270, 600N.Y.S.2d 939 [1st Dept., 1992] the court explained that "human, safety is in issue.. The ultimate relief may be. rendered inadequate, as the loss of one life would render permanent injunctive relief., granted at a later date, ineffective,. The. proof required for a finding Of the likelihood of success on the merits is. reduced. The plaintiffs need not demonstrate a certainty of success but rather, must make a showing of a likelihood of success, on the merits. . .The plaintiffs have amply demonstrated a likelihood of success on the merits and a danger of irreparable injury" (id). Although that case dealt with municipalities the: impact of public safety issue is hot minimized simply when dealing with private citizens.
The defendants present a number of arguments against an injunction. First, they assert there is no: likelihood of success against the individual, .defendants who are shielded by the corporate entity. While that may be true that argument would not bar the corporate defendants from being subject to any mandatory injunction.
Next, the defendants argue there is no likelihood Of success since, the defendants have proposed a plan to repair the facade which- is opposed by the plaintiff.. .However, the defendants thus admit that repairs must be undertaken. Consequently, the defendants admit the plaintiffs have demonstrated a likelihood of success on the merits.. The precise and specific manner of relief may be in dispute and may require further litigation, however, the core relief sought, namely repairs of the facade, is not disputed.
The defendants, make the. curious argument this relief is only about money and thus is not appropriate for injunctive relief. While the lawsuit may be about money, this motion, seeking an injunction surely is not about money. Indeed, it is difficult to imagine how erecting a safety shed somehow inures financially to the plaintiff. Moreover, there is no merit to the argument the. plaintiff has not demonstrated any irreparable harm if someone may be injured by falling bricks, since, only the plaintiff can claim any potential injury. The obvious fact that the public may be injured by falling bricks demands immediate action be taken. As noted, the Department of Buildings has issued four summonses for the very- facade work that is the subject of this motion directly to the defendant: 19th Ave Properties LLC. To the extent1 the defendant argues the plaintiff has frustrated the defendant from implementing a plan of. repair, such issue cart be resolved in the course of this litigation. However, since the defendant is the subject of these summonses the defendant bears the burden Of erecting such protective measures in the first instance.
Concerning the parameters of any protective shed as well as the Composition of such protections, there is no dispute the building, has numerous sides., as many as fifteen. Thus, protections must be placed protecting all sides where reports of experts have indicated there is a possibility of falling bricks. Further,, the defendant can use any materials that satisfy these safety measures. Therefore,, the motion seeking an injunction is granted to the extent indicated.
Turning to the request seeking a bond, it is well settled that pursuant to CPLR §6312 (b) a bond must be imposed. The statute provides that the amount reflect ''all damages and costs which may be sustained by reason of the injunction" (id). The only actual damages sustained by the plaintiff should they prevail is the inconvenience or some ancillary damages caused by the protective measures. Thus, it is hard to quantify these damages. Therefore, the court imposes a bond Of $25,000.
So ordered.