| Sithe Energies, Inc. v 335 Madison Ave., LLC |
| 2007 NY Slip Op 09330 [45 AD3d 469] |
| November 27, 2007 |
| Appellate Division, First Department |
| Sithe Energies, Inc., et al., Respondents-Appellants, v 335Madison Avenue, LLC, et al., Appellants-Respondents. |
—[*1] Finkelstein Newman Ferrara LLP, New York City (Barry Gottlieb of counsel), forrespondents-appellants.
Order, Supreme Court, New York County (Helen E. Freedman, J.), entered July 27, 2007,insofar as it conditionally granted plaintiffs cotenants' motion for a preliminary injunctioncompelling defendant landlord to consent to a sublease between plaintiffs and a nonparty,unanimously reversed, on the law, and the motion denied; plaintiffs' cross appeal from that partof the order conditioning the preliminary injunction on their furnishing of an undertaking in theamount of $1,000,000, unanimously dismissed as academic; all with costs in favor of defendants.
The preliminary injunction is improper because, first, it deprives the landlord of the right,reserved to it by the master lease, to take 20 days to decide whether to approve the proposedsublease following receipt of all the information and documents to which it is entitled under themaster lease. Indeed, the motion court's order recognizes that not all such information wasprovided and that there were deficiencies in the proposed sublease, which omissions anddeficiencies the motion court purported to rectify by making the granting of the injunctionconditional. However, by ordering the landlord to consent to the proposed sublease before it hadan opportunity to review what plaintiffs were being directed to provide, the court usurped thelandlord's role as the arbiter of the permissibility of the sublease. Second, the preliminaryinjunction improperly gives plaintiffs the ultimate equitable relief sought in the action. The [*2]circumstances here are not of such "imperative, urgent, or gravenecessity" as to warrant such relief (see Xerox Corp. v Neises, 31 AD2d 195, 197[1968]). Concur—Lippman, P.J., Friedman, Sullivan, Gonzalez and Catterson, JJ.