| Board of Mgrs. of Wharfside Condominium v Nehrich |
| 2010 NY Slip Op 04124 [73 AD3d 822] |
| May 11, 2010 |
| Appellate Division, Second Department |
| Board of Managers of Wharfside Condominium,Appellant, v Paul Nehrich et al., Respondents. |
—[*1] Ialenti & Macari, LLP, Mineola, N.Y. (Marc J. Ialenti of counsel), for respondents.
In an action, inter alia, to compel the defendants to remove certain alterations made to theterrace of their condominium unit and provide the plaintiff with access to the unit to allow theplaintiff to install windows in accordance with an amendment to the by-laws and declaration ofthe Wharfside Condominium, the plaintiff appeals, as limited by its brief, from (1) so much of anorder of the Supreme Court, Nassau County (Mahon, J.) entered April 1, 2009, as denied itsmotion for a preliminary injunction compelling the defendants, inter alia, to remove thealterations and provide it with access to the condominium unit for the purpose of installingwindows in the unit pending the resolution of the action, and (2), so much of an order of thesame court dated July 31, 2009, as, in effect, upon reargument, adhered to the determination inthe order entered April 1, 2009.
Ordered that the appeal from the order entered April 1, 2009, is dismissed, as that order wassuperseded by the order dated July 31, 2009, made, in effect, upon reargument; and it is further,
Ordered that the order dated July 31, 2009, is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the defendants.
In June 2007 the defendants purchased a condominium unit in the Wharfside Condominium(hereinafter the Condominium) in the Village of Freeport. The prior owners altered the unit in orabout March 2003 by installing a glass enclosure on the terrace of the unit, with the approval ofthe plaintiff Board of Managers of Wharfside Condominium (hereinafter the Board). The terracewas further altered and converted into additional living space by the installation of woodpaneling, a drop ceiling, carpeting, and an electrical ceiling fan, and by the removal of a slidingglass door. In July 2007 the Board requested the defendants to restore the terrace to its originalcondition, asserting that the defendants were required to obtain its approval pursuant to theCondominium's governing documents before making the alterations, which the Board contendsthat it did not grant. Specifically, the Board alleges that it informed the defendants that thegoverning documents required [*2]Board approval before anyalteration was made to the terrace, since the terrace was a common element. The defendants,arguing that approval from the Board was not required to alter the terrace since it was not acommon element, refused to restore the terrace to its original condition.
Thereafter, the Board, in accordance with a Condominium-wide project, attempted to replaceseveral windows and the sliding glass door in the defendants' unit. According to the Board, thistask could not be accomplished because either the defendants refused access or the contractorshired by the Board could not replace the windows and the sliding glass door due to the "physicaloutlay" [sic] of the unit. The Board commenced this action, inter alia, to compel thedefendants to restore the terrace to its original condition and to permit the Board or itscontractors to replace the windows and the sliding glass door. The Board thereafter moved for apreliminary injunction compelling the defendants to restore the unit to its original condition andto provide the Board with access to the unit for the purpose of permitting it or its contractors toreplace the windows and door. The Supreme Court denied the motion and, in effect, uponreargument, adhered to that determination. We affirm the order, in effect, made upon reargumentinsofar as appealed from.
"To establish entitlement to a preliminary injunction, a movant must establish (1) alikelihood or probability of success on the merits, (2) irreparable harm in the absence of aninjunction, and (3) a balance of the equities in favor of granting the injunction" (Stockley v Gorelik, 24 AD3d 535,536 [2005]; see Aetna Ins. Co. v Capasso, 75 NY2d 860, 862 [1990]; Doe vAxelrod, 73 NY2d 748, 750 [1988]). "A party seeking the drastic remedy of a preliminaryinjunction must establish a clear right to that relief under the law and the undisputed facts" (Omakaze Sushi Rest., Inc. v Ngan KamLee, 57 AD3d 497 [2008]; see Peterson v Corbin, 275 AD2d 35, 37 [2000];Nalitt v City of New York, 138 AD2d 580, 581 [1988]). "[A]bsent extraordinarycircumstances, a preliminary injunction will not issue where to do so would grant the movant theultimate relief to which he or she would be entitled in a final judgment" (SHS Baisley, LLC v Res Land, Inc.,18 AD3d 727, 728 [2005]; seeVillage of Westhampton Beach v Cayea, 38 AD3d 760, 762 [2007]; St. Paul Fire &Mar. Ins. Co. v York Claims Serv., 308 AD2d 347 [2003]).
Since the Board's motion requested the ultimate relief to which it would be entitled in a finaljudgment, the Board was required to demonstrate extraordinary circumstances in order to obtainthe requested relief (see St. Paul Fire & Mar. Ins. Co. v York Claims Serv., 308 AD2d at347). The circumstances presented in this case are not of such an extraordinary nature as towarrant mandatory injunctive relief pending the resolution of the litigation (see Village ofWesthampton Beach v Cayea, 38 AD3d at 762; SHS Baisley, LLC v Res Land, Inc.,18 AD3d at 728; St. Paul Fire & Mar. Ins. Co. v York Claims Serv., 308 AD2d at 347;Rosa Hair Stylists v Jaber Food Corp., 218 AD2d 793, 794 [1995]).
Furthermore, contrary to the Board's contention, the governing documents did not establishthat the terrace was a common element of the Condominium or an exterior portion of the subjectunit (cf. Board of Mgrs. of Bond ParcCondominium v Broxmeyer, 62 AD3d 925 [2009]). Therefore, the Board failed toestablish that the defendants were in violation of the governing documents by maintaining theterrace in an altered condition without its approval. Accordingly, the Board did not establish thelikelihood of success on the merits (seegenerally Omakaze Sushi Rest., Inc. v Ngan Kam Lee, 57 AD3d 497 [2008]).
The Board's remaining contentions are without merit. Skelos, J.P., Angiolillo, Leventhal andRoman, JJ., concur.