Opinion
Appeal No. 15671 Index No. 160732/15Case No. 2021-03820
04-05-2022
Real World Holdings LLC, Plaintiff-Appellant, v. 393 West Broadway Corporation et al., Defendants-Respondents. Appeal No. 15671 No. 2021-03820
Lane Crowell LLP, Larchmont (J. Mark Lane of counsel), for appellant. Boyd Richards Parker & Colonnelli, New York (Jacqueline L. Aiello of counsel), for respondents.
Lane Crowell LLP, Larchmont (J. Mark Lane of counsel), for appellant.
Boyd Richards Parker & Colonnelli, New York (Jacqueline L. Aiello of counsel), for respondents.
Before: Webber, J.P., Singh, González, Kennedy, Higgitt, JJ.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered on or about March 30, 2021, which denied plaintiff's motion for a preliminary injunction to compel defendant 393 West Broadway Corporation (the coop) to remediate asbestos in plaintiff's apartment, unanimously affirmed, without costs.
Supreme Court providently exercised its discretion in denying the motion, which was based upon the causes of action alleging trespass due to asbestos contamination. A mandatory injunction requiring the coop to perform asbestos remediation "would upset, rather than maintain, the status quo and would effectively grant the ultimate relief sought" in the 17th cause of action (Moltisanti v East Riv. Hous. Corp., 149 A.D.3d 530, 531 [1st Dept 2017]; see League of Women Voters of N.Y. State v New York State Bd. of Elections, 189 A.D.3d 409, 410 [1st Dept 2020]; Residential Bd. of Mgrs. of Columbia Condominium v Alden, 178 A.D.2d 121, 122 [1st Dept 1991]).
To the extent plaintiff seeks to show extraordinary circumstances warranting the grant of ultimate relief, we find this argument unavailing (see Board of Mgrs. of Wharfside Condominium v Nehrich, 73 A.D.3d 822, 824 [2d Dept 2010]). There was no imminent risk to the health and safety of plaintiff's members and their families, since the unit had been vacant long before the repairs that allegedly caused the contamination (compare Doe v Dinkins, 192 A.D.2d 270, 275-276 [1st Dept 1993][danger of irreparable injury without a mandatory injunction to reduce the population at overcrowded homeless shelters that had not cured existing fire code regulations]).
Moreover, plaintiff failed to demonstrate irreparable harm, since any costs incurred in funding remediation on its own would be compensable by money damages - which plaintiff does, in fact, seek in the complaint - and therefore do not warrant injunctive relief (see Moltisanti, 149 A.D.3d at 531; 306 Rutledge, LLC v City of New York, 90 A.D.3d 1026, 1028 [2d Dept 2010]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.