| 306 Rutledge, LLC v City of New York |
| 2011 NY Slip Op 09625 [90 AD3d 1026] |
| December 27, 2011 |
| Appellate Division, Second Department |
| 306 Rutledge, LLC, Respondent, v City of New York et al.,Appellants. |
—[*1] Goldberg & Cohn, LLP, Brooklyn, N.Y. (Elliott S. Martin of counsel), forrespondent.
In an action, inter alia, for injunctive relief and to recover damages for breach of contract, thedefendants appeal from an order of the Supreme Court, Kings County (Velasquez, J.), datedAugust 30, 2010, which granted those branches of the plaintiff's motion which were to directthem to disclose the complete records concerning their use of, and activities at, the subjectpremises, relating to the creation and remediation of pollution at the premises, and any tangiblerecords concerning any actions or plans to remediate the polluted condition, and for a preliminaryinjunction directing them to pay the plaintiff the amount of all rental payments due sinceSeptember 15, 2009, together with all payments due for real estate taxes, water and sewer rental,and any other payments required under the 2006 lease between the parties until the defendantsabate the environmental hazard existing on the subject premises or the outcome of any trial inthis matter.
Ordered that the order is modified, on the law and in the exercise of discretion, by deletingthe provision thereof granting that branch of the plaintiff's motion which was for a preliminaryinjunction directing the defendants to pay the "plaintiff the amount of all rental payments duesince September 15, 2009, together with all payments due for real estate taxes, water and sewerrental, and any other payments required under the 2006 lease between the parties" until thedefendants abate the environmental hazard existing on the subject premises or the outcome ofany trial in this matter, and substituting therefor a provision denying that branch of the plaintiff'smotion; as so modified, the order is affirmed, without costs or disbursements.
The plaintiff is the owner of premises which were, at one time, occupied by the defendantSanitation Department of the City of New York (hereinafter the City) pursuant to amonth-to-month tenancy under a renewal lease. On January 30, 2009, the City terminated thetenancy, surrendered the premises, and discontinued paying rent and other charges under thelease. Approximately eight months later, the plaintiff commenced this action, alleging that theCity had failed to complete environmental remediation on the premises pursuant to a 1994consent order issued by the New York State Department of Environmental Conservation. Theplaintiff moved, inter alia, to direct disclosure of the City's complete records concerning its useof, and activities at, the premises relating to the creation and remediation of pollution at thepremises, and any tangible records concerning any actions or plans to remediate the pollutedcondition, and for a preliminary injunction directing the defendants to pay the plaintiff theamount of all rental payments due since [*2]September 15, 2009,together with all payments due for real estate taxes, water and sewer rental, and any otherpayments required under the 2006 lease between the parties until the defendants abate theenvironmental hazard existing on the subject premises or the outcome of any trial in this matter.The Supreme Court granted those branches of the motion.
CPLR 3101 (a) provides for full disclosure of "all matter material and necessary in theprosecution . . . of an action" (see Allen v Crowell-Collier Publ. Co., 21NY2d 403, 406 [1968]). "The Supreme Court has broad discretion in the supervision ofdiscovery, and its determinations should not be disturbed on appeal unless improvidently made"(Foster v Herbert Slepoy Corp., 74AD3d 1139, 1140 [2010] [internal quotation marks omitted]; see JRP Old Riverhead Ltd. v Town ofSouthampton, 73 AD3d 1130, 1132-1133 [2010]; Kaplan v Herbstein, 175AD2d 200 [1991]). Under the circumstances of this case, the Supreme Court providently grantedthat branch of the plaintiff's motion which was to direct the defendants to disclose its completerecords concerning its use of, and activities at, the premises, relating to the creation andremediation of pollution at the premises, and any tangible records concerning any actions orplans to remediate the polluted condition, as these records are material and necessary to theissues in this case.
"The purpose of a preliminary injunction is to preserve the status quo until a decision isreached on the merits" (Icy Splash Food& Beverage, Inc. v Henckel, 14 AD3d 595, 596 [2005]; see S.J.J.K. Tennis, Inc. v Confer Bethpage,LLC, 81 AD3d 629, 630 [2011]; Ruiz v Meloney, 26 AD3d 485, 486 [2006]). "To be entitled to apreliminary injunction, a movant must establish (1) a likelihood or probability of success on themerits, (2) irreparable injury absent granting the preliminary injunction, and (3) a balancing ofthe equities in the movant's favor" (Rowland v Dushin, 82 AD3d 738, 739 [2011]; see Board of Mgrs. of WharfsideCondominium v Nehrich, 73 AD3d 822, 824 [2010]; Yemini v Goldberg, 60 AD3d 935,936 [2009]). "Where the plaintiffs can be fully compensated by a monetary award, an injunctionwill not issue because no irreparable harm will be sustained in the absence of such relief" (Mar v Liquid Mgt. Partners, LLC, 62AD3d 762, 763 [2009]).
Here, the City has not yet remediated the contamination on the premises. Although theplaintiff may ultimately be successful in this action, the order of the Supreme Court effectivelyaltered the status quo and granted the monetary relief the plaintiff seeks in the complaint (see SHS Baisley, LLC v Res Land,Inc., 18 AD3d 727, 728 [2005];Village of Westhampton Beach v Cayea, 38 AD3d 760, 762 [2007]). Accordingly, thatbranch of the plaintiff's motion which was for a preliminary injunction directing the defendantsto pay the plaintiff the amount of all rental payments due since September 15, 2009, togetherwith all payments due for real estate taxes, water and sewer rental, and any other paymentsrequired under the 2006 lease between the parties until the defendants abate the environmentalhazard existing on the subject premises or the outcome of any trial in this matter, should havebeen denied. Rivera, J.P., Angiolillo, Belen and Roman, JJ., concur.