| Purvi Enters., LLC v City of New York |
| 2009 NY Slip Op 03844 [62 AD3d 508] |
| May 14, 2009 |
| Appellate Division, First Department |
| Purvi Enterprises, LLC, Appellant, v City of New York,Defendants, and 3206 Emmons Avenue Realty, LLC, et al.,Respondents. |
—[*1] Castro & Karten LLP, New York (Claude Castro of counsel), for 3206 Emmons AvenueRealty, LLC, respondent. Cozen O'Connor, P.C., New York (Julie B. Negovan of counsel), for Howard Hornstein andCozen O'Connor, P.C., respondents.
Orders, Supreme Court, New York County (Charles E. Ramos, J.), entered July 3, 2008,which (1) denied plaintiff's motion for a temporary restraining order and preliminary injunctionand granted defendant 3206 Emmons Avenue Realty, LLC's cross motion to dismiss thecomplaint as against it, and (2) granted Howard Hornstein and Cozen O'Connor, P.C.'s crossmotion to dismiss the complaint as against them and sua sponte dismissed the complaint asagainst defendant City of New York, unanimously modified, on the law, to vacate the dismissalof the complaint as against the City and reinstate the complaint as against that defendant, to grantplaintiff leave to amend the complaint to assert a claim for breach of contract against 3206Emmons, and to reinstate so much of the sixth cause of action as against 3206 Emmons as seeksattorneys' fees, and otherwise affirmed, without costs. Appeal from order, same court andJustice, entered June 4, 2008, unanimously dismissed, without costs, as superseded by the appealfrom the second aforesaid order entered July 3, 2008.
The complaint should not have been dismissed as against the City. The City did not move todismiss and did not appear in connection with any of the cross motions, and thus the parties havenot been heard with respect to the claims asserted against the City.
Plaintiff failed to demonstrate a likelihood of success on the merits of any of its claims forinjunctive relief (see CPLR 6301; Aetna Ins. Co. v Capasso, 75 NY2d 860[1990]). With respect to its cause of action for mandatory injunctive relief against 3206Emmons, plaintiff failed to demonstrate that 3206 Emmons is required by the zoning lotdevelopment agreement (ZLDA) to execute and deliver an authorization permitting plaintiff tofile an application with the [*2]City Planning Commission (CPC)on its (plaintiff's) behalf without having the opportunity to review the application first todetermine whether it would adversely affect 3206 Emmons' own property interests. To the extentthat 3206 Emmons breached the ZLDA by contacting the City about the allegedly invalidcertificate of occupancy (C/O) previously issued to plaintiff, thereby instigating proceedings bythe Department of Buildings (DOB) to revoke the C/O, that breach is past conduct adequatelycompensable by damages. An injunction against future breaches of the ZLDA would appear tobe unnecessary in view of the fact that DOB has agreed not to continue with the revocationproceedings until the court determines whether 3206 Emmons is required to consent to plaintiff'sfiling of its application with the CPC. We sua sponte grant plaintiff leave to amend the complaintto allege a cause of action against 3206 Emmons for breach of contract, and, accordingly,reinstate so much of plaintiff's sixth cause of action as against 3206 Emmons as seeks attorneys'fees, as provided for in the ZLDA.
As to the Cozen O'Connor defendants, since they are not parties to the ZLDA, they cannot beenjoined from breaching it. To the extent plaintiff alleges that the Cozen O'Connor defendantseither conspired with 3206 Emmons to breach the agreement or aided and abetted a breachthereof by 3206 Emmons, these defendants cannot be enjoined from such conduct because nosuch cause of action exists (see Health-Loom Corp. v Soho Plaza Corp., 209 AD2d 197,198 [1994]; Galesi v Galesi, 12Misc 3d 1186[A], 2005 NY Slip Op 52310[U], *5 [2005], affd in part and appealdismissed in part 37 AD3d 249 [2007]). To the extent plaintiff alleges that Cozen O'Connorcommitted tortious interference with contract and seeks to enjoin further instances of suchtortious conduct, Cozen O'Connor's conduct would be immune from liability "under the shieldafforded attorneys in advising their clients, even when such advice is erroneous, in the absenceof fraud, collusion, malice or bad faith" (Beatie v DeLong, 164 AD2d 104, 109 [1990];see also Lloyd I. Isler, P.C. v Sutter, 160 AD2d 609, 610 [1990]). Plaintiff's attempt toenjoin the Cozen O'Connor defendants from further representing 3206 Emmons in matters inopposition to plaintiff, because of an alleged conflict of interest resulting from their priorrepresentation of entities related to plaintiff, is in effect an attempt to disqualify Cozen O'Connorfrom representing 3206 Emmons in this action. However, even if plaintiff could prove that it is aformer client of Cozen O'Connor (seeA.F.C. Enters., Inc. v New York City School Constr. Auth., 33 AD3d 736 [2006]), itcould not show that the prior representation was either substantially related or materially adverseto the present representation of 3206 Emmons (see Tekni-Plex, Inc. v Meyner & Landis,89 NY2d 123, 131 [1996]).
Finally, while the balance of the equities favors plaintiff since plaintiff would likely not befacing the revocation of its C/O if 3206 Emmons had not instigated the DOB's action against it,and enjoining 3206 Emmons from engaging in further interference and restraining the City fromrevoking the C/O pending resolution of the litigation would merely preserve the status quo, theCity's express agreement not to calendar the Board of Standards and Appeals hearing for aperiod of time to allow the contractual dispute between plaintiff and 3206 Emmons to beresolved undermines plaintiff's claim of irreparable harm from the revocation of its C/O.[*3]
We have considered plaintiff's remaining contentions andfind them unavailing. Concur—Mazzarelli, J.P., Saxe, Nardelli, Renwick and Freedman,JJ.