Opinion
375 Index No. 157203/21 Case No. 2021–04539
06-01-2023
George E. KAZANTZIS etc., Plaintiff–Appellant, v. CASCADE FUNDING RM1 ACQUISITIONS GRANTOR TRUST et al., Defendants–Respondents.
Smith Buss & Jacobs, LLP, Yonkers (Eric P. Blaha of counsel), for appellant. Robertson, Anschutz, Schneid, Crane & Partners PLLC, Westbury (Joseph F. Battista of counsel), for respondents.
Smith Buss & Jacobs, LLP, Yonkers (Eric P. Blaha of counsel), for appellant.
Robertson, Anschutz, Schneid, Crane & Partners PLLC, Westbury (Joseph F. Battista of counsel), for respondents.
Moulton, J.P., Gonza´lez,Mendez, Rodriguez, JJ.
Appeal from order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about December 6, 2021, which denied plaintiff's motion for a preliminary injunction, unanimously dismissed, without costs, as moot.
"[M]ootness is a doctrine related to subject matter jurisdiction and thus must be considered by the court sua sponte" ( Matter of Grand Jury Subpoenas for Locals 17, 135, 257 & 608 of United Bhd. of Carpenters & Joiners of Am., AFL–CIO , 72 N.Y.2d 307, 311, 532 N.Y.S.2d 722, 528 N.E.2d 1195 [1988], cert denied 488 U.S. 966, 109 S.Ct. 492, 102 L.Ed.2d 529 [1988] ; see Matter of Weeks Woodlands Assn., Inc. v. Dormitory Auth. of the State of N.Y., 95 A.D.3d 747, 753, 945 N.Y.S.2d 263 [1st Dept. 2012], affd 20 N.Y.3d 919, 956 N.Y.S.2d 483, 980 N.E.2d 532 [2012] ). Here, the foreclosure sale that plaintiff sought to preliminarily enjoin had already occurred by the time that Supreme Court signed the proposed order to show cause and issued a temporary restraining order. After entry of the order for review, a Justice of this Court denied plaintiff's application to stay defendants from proceeding with any sale or transfer of interest in the apartment pending the determination of his motion for such a stay pending appeal; this Court later denied plaintiff's motion ( 2022 N.Y. Slip Op. 60805[U] [1st Dept. 2022] ). According to the NYSCEF record of this case in Supreme Court – of which we may take judicial notice (see 1591 Second Ave. LLC v. Metropolitan Transp. Auth., 202 A.D.3d 582, 583, 163 N.Y.S.3d 56 [1st Dept. 2022] ; Corona v. HHSC 13th St. Dev. Corp., 197 A.D.3d 1025, 1026 n, 153 N.Y.S.3d 448 [1st Dept. 2021] ) – the apartment was then resold, to defendants themselves, at another foreclosure sale on June 15, 2022. Because "an injunction may not issue to prohibit a fait accompli " ( Currier v. First Transcapital Corp., 190 A.D.2d 507, 508, 593 N.Y.S.2d 16 [1st Dept. 1993] ), the relief that plaintiff seeks "is ‘a legal impossibility,’ and the appeal is moot" ( AmBase Corp. v. Spruce Capital Partners LLC, 168 A.D.3d 514, 515, 91 N.Y.S.3d 411 [1st Dept. 2019], quoting Divito v. Farrell, 50 A.D.3d 405, 406, 857 N.Y.S.2d 61 [1st Dept. 2008] ).
As an alternative holding, we find that plaintiff's motion was properly denied. "To be entitled to a preliminary injunction, the moving party must demonstrate (1) a likelihood of success on the merits, (2) irreparable injury if provisional relief is not granted and (3) that the equities are in his favor" ( J.A. Preston Corp. v. Fabrication Enters., Inc ., 68 N.Y.2d 397, 406, 509 N.Y.S.2d 520, 502 N.E.2d 197 [1986] ; see CPLR 6301, 6312[a] ; 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] ).
Here, Supreme Court providently exercised its discretion in finding that plaintiff failed to satisfy any of the criteria for a preliminary injunction, and we see no need to exercise our discretion differently (see Matter of Attorney–General of State of N.Y. v. Katz, 55 N.Y.2d 1015, 1017, 449 N.Y.S.2d 476, 434 N.E.2d 712 [1982] ; Southard v. Salerno, 113 A.D.2d 927, 928, 493 N.Y.S.2d 764 [2d Dept. 1985] ; cf. Estate of Ungar v. Palestinian Auth., 44 A.D.3d 176, 179, 841 N.Y.S.2d 61 [1st Dept. 2007] ). First, plaintiff failed to establish his likelihood of success on the merits by clear and convincing evidence given the existence of issues of fact as to how both to interpret the relevant documents and to reconcile the parties’ competing interpretations thereof. Second, plaintiff has failed to show irreparable harm, as he has only a financial interest in the apartment, given that he does not reside there or have some other personal, sentimental, familial, or otherwise unquantifiable interest therein. Therefore, he can be fully compensated by money damages if he prevails (see Avenue A. Assoc. LP v. Board of Mgrs. of the Hearth House Condominium, 190 A.D.3d 473, 474, 135 N.Y.S.3d 821 [1st Dept. 2021] ; Broadway 500 W. Monroe Mezz II LLC v. Transwestern Mezzanine Realty Partners II, LLC, 80 A.D.3d 483, 484, 915 N.Y.S.2d 248 [1st Dept. 2011] ). Finally, plaintiff failed to establish that the balance of the equities is in his favor, particularly given his delays in seeking injunctive relief from Supreme Court and in prosecuting this appeal (see Mercury Serv. Sys., Inc . v. Schmidt, 50 A.D.2d 533, 533, 375 N.Y.S.2d 12 [1st Dept. 1975] ).