| Di Fabio v Omnipoint Communications, Inc. |
| 2009 NY Slip Op 07223 [66 AD3d 635] |
| October 6, 2009 |
| Appellate Division, Second Department |
| Max Di Fabio, Appellant, v Omnipoint Communications,Inc., et al., Respondents. |
—[*1] Marc A. Rapaport, New York, N.Y. (Meredith R. Miller of counsel), for respondentOmnipoint Communications, Inc. Finger & Finger PC, White Plains, N.Y. (Carl L. Finger of counsel), for respondents HowardSchlectus, Victor Gorelick, Francis Winkler, Anthony Byrn, and Janice Meo.
In an action for a permanent injunction, the plaintiff appeals, as limited by his brief, from somuch of an order of the Supreme Court, Westchester County (Donovan, J.), entered January 28,2008, as denied his motion for a preliminary injunction and granted the cross motion of thedefendants Howard Schlectus, Victor Gorelick, Francis Winkler, Anthony Byrn, and Janice Meoto dismiss the complaint, in effect, insofar as asserted against them pursuant to CPLR 3211 (a)(3), (7) and (10).
Ordered that the order is affirmed insofar as appealed from, with one bill of costs to therespondents appearing separately and filing separate briefs.
The plaintiff is the owner and occupant of a condominium unit in the Enclave Condominium(hereinafter the condominium), a 24-unit residential condominium in Scarsdale. The defendantsHoward Schlectus, Victor Gorelick, Francis Winkler, Anthony Byrn, and Janice Meo(hereinafter collectively the board members) are members of the board of managers of thecondominium (hereinafter the board of managers). In March 2007 Schlectus and Gorelick, aspresident and member of the board of managers respectively, entered into a lease on behalf of thecondominium with the defendant Omnipoint Communications, Inc. (hereinafter Omnipoint),permitting Omnipoint to construct and erect a cellular telephone antenna (hereinafter theantenna) on the roof of the condominium, with an accompanying storage area in thecondominium's basement. According to the condominium's declaration, the roof of the buildingand all storage spaces constitute common elements.
The plaintiff commenced this action against Omnipoint and the board members for apermanent injunction enjoining and restraining Omnipoint from constructing and erecting theantenna on any part of the common elements of the condominium. The plaintiff subsequentlymoved for a preliminary injunction enjoining and restraining Omnipoint from, among otherthings, [*2]constructing and erecting the antenna during thependency of the action. The board members cross-moved to dismiss the complaint, in effect,insofar as asserted against them pursuant to CPLR 3211 (a) (3), (7) and (10). The SupremeCourt, inter alia, denied the plaintiff's motion for a preliminary injunction and granted the crossmotion to dismiss the complaint, in effect, insofar as asserted against the board members. Weaffirm.
To establish entitlement to a preliminary injunction, a movant must establish (1) a likelihoodor probability of success on the merits, (2) irreparable harm in the absence of an injunction, and(3) a balance of the equities in favor of granting the injunction (see CPLR 6301; Doev Axelrod, 73 NY2d 748, 750 [1988]; W.T. Grant Co. v Srogi, 52 NY2d 496, 517[1981]). "Irreparable injury, for purposes of equity, has been held to mean any injury for whichmoney damages are insufficient" (Matter of Walsh v Design Concepts, 221 AD2d 454,455 [1995] [internal quotation marks omitted]; see McLaughlin, Piven, Vogel v Nolan &Co., 114 AD2d 165, 174 [1986]). Conversely, "[e]conomic loss, which is compensable bymoney damages, does not constitute irreparable harm" (EdCia Corp. v McCormack, 44 AD3d 991, 994 [2007]; seeNeos v Lacey, 291 AD2d 434, 435 [2002]). The plaintiff failed to allege damages of anoneconomic nature and, thus, failed to demonstrate irreparable harm in the absence of apreliminary injunction (see AutomatedWaste Disposal, Inc. v Mid-Hudson Waste, Inc., 50 AD3d 1072, 1073 [2008]; Dana Distribs., Inc. v Crown Imports,LLC, 48 AD3d 613 [2008]; cf.Winzelberg v 1319 50th Realty Corp., 52 AD3d 700 [2008]; Stockley v Gorelik, 24 AD3d 535[2005]). The plaintiff's contention that the Supreme Court was required to hold a hearing on hismotion is without merit (see CPLR 6312 [c]; Marders the Landscape Store vBarylski, 303 AD2d 465, 466 [2003]). Accordingly, the Supreme Court properly denied theplaintiff's motion for a preliminary injunction.
With respect to the board members' cross motion to dismiss the complaint, in effect, insofaras asserted against them, the board members correctly contend that an owner of an individualcondominium unit is without standing to assert a claim for damages to the common interest of acondominium (see Caprer v Nussbaum,36 AD3d 176, 185-186 [2006]). Although an individual unit owner may maintain aderivative action against a condominium's board of managers on behalf of the condominium(id. at 187-190), the plaintiff did not bring this action as a derivative action. "Acomplaint the allegations of which confuse a shareholder's derivative and individual rights will. . . be dismissed" (Abrams v Donati, 66 NY2d 951, 953 [1985]).Accordingly, the Supreme Court properly granted the board members' cross motion to dismissthe complaint, in effect, insofar as asserted against them pursuant to CPLR 3211 (a) (3), (7) and(10). Our determination does not preclude the plaintiff from commencing a new cause of actionin a representative capacity on behalf of the condominium.
In light of our determination, we need not reach the parties' remaining contentions. Rivera,J.P., Balkin, Leventhal and Lott, JJ., concur.