Wright v. Bd. of Managers of 57 E. 73Rd St. Condo.

Full title: JAMES WRIGHT, Plaintiff, v. BOARD OF MANAGERS OF 57 EAST 73RD STREET…

Court: Supreme Court, New York County

Date published: Apr 18, 2024

2024 N.Y. Slip Op. 31400 (N.Y. Sup. Ct. 2024)

2024 N.Y. Slip Op. 31412

Opinion

No. 651658/2024 Motion Seq. No. 001

04-18-2024

JAMES WRIGHT, Plaintiff, v. BOARD OF MANAGERS OF 57 EAST 73RD STREET CONDOMINIUM, and A.Y. STRAUSS, LLC, Defendants.

DEBRA A. JAMES, J.S.C.

Unpublished Opinion

PART 59

MOTION DATE 04/18/2024

ORDER-AMENDED RESETTLED (MOTION RELATED)

DEBRA A. JAMES, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 17, 18, 19, 21,22, 23 were read on this motion to/for PRELIMINARY INJUNCTION.

ORDER

Upon the foregoing documents, it is

ORDERED that the Order of April 18, 2024, resolving motion sequence numbers 001 in this action is VACATED, RESETTLED, and CORRECTED pursuant to CPLR § 5019(a) [see Kiker v Nassau County, 85 N.Y.2d 879 (1995)] as follows:

ORDER Upon the foregoing documents, it is ORDERED that the motion of plaintiff for a preliminary injunction is DENIED; and it is further

ORDERED that defendants shall answer the complaint or otherwise move, within twenty (20) days of service of this order with notice of entry; and it is further

ORDERED that counsel are directed to post on NYSCEF a preliminary discovery conference order or competing preliminary discovery conference order(s) at least two days before June 18, 2024, on which date counsel shall appear via Microsoft Teams, unless such appearance be waived by the court.

DECISION

On his application for a preliminary injunction, "plaintiff[] is required to demonstrate a likelihood of ultimate success on the merits, irreparable harm and that [the] equities of the situation were in [his] favor" (After Six Inc, v 201 East 66^th Street Associates, 87 A.D.2d 153 [1^st Dept 1982]) .

With respect to the first prong, plaintiff has not stated a meritorious cause of action, let alone a likelihood of success on the merits, as to his claim for declaratory relief that asserts breach of the Settlement Agreement dated August 31, 2023. See Ithilien Realty Corp v 180 Ludlow Development LLC, 140 A.D.3d 621 (1^st Dept 2016) and Upfront Megatainment, Inc, v Thiam, 215 A.D.3d 57 6 (1^st Dept 2 023) .

Plaintiff seeks permanent injunctive relief on his claims for (1) interference with the Contract of Sale dated September 1, 2023, and (2) by way of specific performance by defendant Board of Managers of 57 East 73^rd Street Condominium, alleging bad faith in defendant Board's obligations of its obligations under the Settlement Agreement.

By its very nature, success on a claim of interference with Contract would not entitle plaintiff to equitable relief, and so such claim lacks merit to that extent. Should plaintiff prevail on such claim against defendant Board, his measure of damages would be monetary and not equitable. See MUGF Union Bank, NA v Axos Bank, 196 A.D.3d 442 (1^st Dept 2021) .

To the extent he seeks a preliminary injunction with respect to his claim for specific performance of the obligations of defendant Board, plaintiff has shown some likelihood of success on the merits. See Destiny USA Holdings, LLC v Citigroup Global Markets Realty Corp., 69 A.D.3d 212 (4^th Dept 2009).

However, plaintiff has failed to demonstrate irreparable harm should the court not enjoin defendant Board from extending his time to close, as monetary damages are ascertainable for any losses, including a refund of any down payment, that plaintiff will suffer with respect to his inability to consummate the Contract of Sale dated September 1, 2023, that arise from any illegal acts of defendant Board. The same is true to the extent that the filing of the confession of judgment triggers plaintiff's inability to consummate the Contract of Sale, as a result of defendant Board's breach of the Settlement Agreement.

Nor has plaintiff established irreparable injury arising from the filing of the confession of judgment, as the "possible" adverse action of FINRA with respect to plaintiff's securities brokers license is "speculative" (Matter of P.& E. T. Foundation, 204 A.D.3d 1460, 1461 [4^th Dept 2022] ("the prospect of irreparable harm must not be . . . 'speculative'").

Finally, the court finds the equities are equally balanced. See New York City Off-Track Betting Corp v New York Racing Assn Inc, 250 A.D.2d 437 (1^st Dept 1998).