| Pamela Equities Corp. v 270 Park Ave. Caf|fe Corp. |
| 2009 NY Slip Op 04166 [62 AD3d 620] |
| May 28, 2009 |
| Appellate Division, First Department |
| Pamela Equities Corp., Respondent, v 270 Park AvenueCafÉ Corp., Appellant. |
—[*1] Bauman Katz & Grill LLP, New York (John M. Giordano of counsel), forrespondent.
Order, Supreme Court, New York County (Walter B. Tolub, J.), entered November 21, 2008,which granted plaintiff landlord's motion for an order compelling defendant tenant to provideplaintiff with access to the kitchen and basement of the premises with certain limitations so as toallow plaintiff to perform necessary remedial work, unanimously modified, on the law, to theextent of striking that portion of the order indicating that it is a final disposition and remandingthe matter to Supreme Court for the purpose of setting an undertaking to be posted by plaintiff,and otherwise affirmed, without costs.
The court exercised its discretion in a provident manner in granting the injunctive reliefsince plaintiff demonstrated a likelihood of success on the merits, irreparable injury based onfurther damage to the building if the necessary repairs are not made and that a balancing of theequities weighs in its favor (see generally Doe v Axelrod, 73 NY2d 748, 750 [1988]; see also Huron Assoc., LLC v 210 E. 86thSt. Corp., 18 AD3d 231 [2005]; 1500 Broadway Chili Co. v Zapco 1500 Inv.,259 AD2d 257 [1999]). However, because CPLR 6312 (b) requires that plaintiff post anundertaking in an amount to be fixed by the court, the matter is remanded to the motion court toset an amount that reflects the damages that defendant may incur (see Visual Equities vSotheby's, Inc., 199 AD2d 59 [1993]).
Although the injunctive relief was appropriately granted, "[a] preliminary injunction is aprovisional remedy. Its function is not to determine the ultimate rights of the parties, but tomaintain the status quo until there can be a full hearing on the merits" (Residential Bd. ofMgrs. of Columbia Condominium v Alden, 178 AD2d 121, 122 [1991]). Thus, to the extentthe motion court's order indicated that it was a final disposition, it was in error.
We have considered defendant's remaining arguments, including its request for a rentabatement, and find them unavailing. Concur—Gonzalez, P.J., Mazzarelli, Buckley,Renwick and Abdus-Salaam, JJ.