Opinion
No. 9215/2012.
2012-10-24
Teddy PEREZ v. WEI LI.
Biat Maderer, Esq., Great Neck, for the Plaintiff. Law Office of Yeung & Wang PLLC, by Jeremy Wang, Esq., Flushing, for the Defendant.
Biat Maderer, Esq., Great Neck, for the Plaintiff. Law Office of Yeung & Wang PLLC, by Jeremy Wang, Esq., Flushing, for the Defendant.
CHARLES J. MARKEY, J.
The following papers numbered 1 to 5 read on this motion by plaintiff Teddy Perez for a preliminary injunction, inter alia, prohibiting defendant Wei Li from disposing of personal property the former left at premises known as 111–75 43rd Avenue, Corona, in Queens County, New York and requiring defendant Wei Li to return the personal property to plaintiff Perez.
+--------------------------------------------------+ ¦Papers ¦Numbered ¦ +---------------------------------------+----------¦ ¦Order to Show Cause–Affidavits–Exhibits¦1 ¦ +---------------------------------------+----------¦ ¦Answering Affidavits–Exhibits ¦2 ¦ +---------------------------------------+----------¦ ¦Reply Affidavits ¦3–5 ¦ +--------------------------------------------------+
Plaintiff Teddy Perez alleges the following: On or about January 28, 2011, plaintiff Perez, the owner of premises known as 111–75 43rd Avenue, Corona, in Queens County, New York, made a short sale of the property to Kavita Seecharan for $175,000. On February 17, 2012, Seecharan in turn sold the property to defendant Wei Li for $425,000.
Plaintiff Perez, who had continued to live at the property as a tenant, informed defendant Li that he wanted to remain in the house for five days and also wanted to rent the garage where he stored furniture, tools and equipment. The parties agreed that Perez could use the garage for a short period of time, and as consideration Perez gave Li kitchen appliances and furniture. Perez vacated the house on February 24, 2012, but kept the key to the garage. From February 17, 2012 until April 22, 2012, Perez had unimpeded access to the garage from which he would remove and return tools and equipment used to make a living as a truck mechanic. Li never gave him notice to remove his personal property from the garage.
On April 23, 2012, Perez went to the garage to remove tools and equipment, but Li prevented him from doing so and then changed the lock on the garage door. Perez called the police, but they refused to intervene on the ground that the dispute was a civil matter. Perez had left in the garage a set of oak furniture worth about $3600, a wooden table and chairs worth about $1000, two refrigerators, a laundry machine, and other items. Li has been using the wooden table and one of the refrigerators in the house.
Defendant Wei Li alleges the following: He was “never aware” that plaintiff Teddy Perez was a tenant at the property, and the defendant thought that Perez worked for Seecharan. The defendant never gave the plaintiff permission to store personal property in the garage, and the defendant thought that the personal property left there belonged to Seecharan. On April 18, 2012 and again on April 25, 2012, the attorneys who represented Wei Li in the purchase of the house e-mailed that attorneys for Kavita Seecharan, the seller, to inquire if Seecharan wanted the personal property and to inform Seecharan that Wei Li intended to dispose of the property if not retrieved. There was no response. Consequently, Wei Li made arrangements with Eastern Trading 88, Inc. for the removal of the personal property left in the garage. On April 24, 2012, the company did so. The defendant did not come across any tools or heavy equipment allegedly left in the garage by the plaintiff.
The motion lacks merit. In order to obtain a preliminary injunction, plaintiff Perez had to show (1) a likelihood of ultimate success on the merits, (2) irreparable injury if provisional relief is withheld, and (3) a weight of the equities in his favor ( see, Aetna Insurance Co. v. Capasso, 75 N.Y.2d 860 [1990];McNeil v. Mohammed, 32 AD3d 829 [2nd Dept.2006] ). The plaintiff, upon the foregoing papers, failed to carry this burden. An injury compensable by money damages is not irreparable ( see, Rowland v. Dushin, 82 AD3d 738 [2nd Dept.2011]; Family–Friendly Media, Inc. v. Recorder Television Network, 74 AD3d 738 [2nd Dept.2010] ). Moreover, the issuance of a preliminary injunction will not prevent irreparable injury where the relief sought has already become moot, and a preliminary injunction will be denied where the relief sought has become academic ( see, L–3 Communications Corp. v. Kelly, 36 AD3d 762 [2nd Dept.2007] ).
Defendant Wei Li submitted bills from Eastern Trading 88, Inc., dated April 21, 2012 and April 24, 2012, corroborating his allegations that the garage has already been cleaned out. It appears that this motion is moot except for a table and possibly one or two other items that the defendant may be using in his house. The use of the table, etc., if it is occurring, will not cause the plaintiff irreparable injury. The plaintiff has apparently conceded that the garage has been emptied. At the hearing on July 19, 2012, the defendant's attorney informed the plaintiff's attorney that the defendant would allow the plaintiff to inspect the garage, but the plaintiff's attorney stated that his client wanted to inspect the house instead. Of course, the defendant's attorney refused to permit the plaintiff to walk through the defendant's house, claiming and seizing what he saw there as his own.
The foregoing constitutes the decision, opinion, and order of the Court.