| Board of Mgrs. of the Britton Condominium v C.H.P.Y. RealtyAssoc. |
| 2012 NY Slip Op 08676 [101 AD3d 917] |
| December 19, 2012 |
| Appellate Division, Second Department |
| Board of Managers of the Britton Condominium,Respondent, v C.H.P.Y. Realty Associates, Appellant. |
—[*1] Smith, Buss & Jacobs, LLP, Yonkers, N.Y. (Jennifer L. Stewart and Jeffrey D. Buss ofcounsel), for respondent.
In an action, inter alia, for a judgment declaring that the plaintiff has the right to accesscertain water pipes for the purpose of altering and repairing the same, the defendant appeals (1)from an order of the Supreme Court, Queens County (Weiss, J.), entered February 2, 2011, whichgranted the plaintiff's motion for a preliminary injunction directing it to grant the plaintiff accessto certain water pipes for the purpose of altering and repairing the same, (2) as limited by itsbrief, from so much of a resettled order of the same court entered September 8, 2011, as grantedthe plaintiff's motion for a preliminary injunction directing it to grant the plaintiff access tocertain water pipes for the purpose of altering and repairing the same, and (3) from statedportions of an order of the same court entered June 27, 2011, which, among other things, deniedthat branch of its motion, denominated as one for leave to renew pursuant to CPLR 2221 (e), but,which was, in actuality, one for leave to reargue its opposition to the plaintiff's prior motion for apreliminary injunction, and denied, in effect, that branch of the same motion which was to vacatethe preliminary injunction pursuant to CPLR 6314.
Ordered that the appeal from the order entered February 2, 2011, is dismissed, as that orderwas superseded by the resettled order entered September 8, 2011; and it is further,
Ordered that the resettled order entered September 8, 2011, is reversed insofar as appealedfrom, on the law, the order entered February 2, 2011, is vacated, and the plaintiff's motion for apreliminary injunction is denied; and it is further,
Ordered that the appeal from so much of the order entered June 27, 2011, as denied thatbranch of the defendant's motion, denominated as one for leave to renew pursuant to CPLR 2221(e), but which was, in actuality, one for leave to reargue its opposition to the plaintiff's priormotion for a preliminary injunction is dismissed, as no appeal lies from an order denying leave toreargue; and it is further,
Ordered that the order entered June 27, 2011, is affirmed insofar as reviewed; and [*2]it is further,
Ordered that one bill of costs is awarded to the defendant.
The plaintiff, Board of Managers of the Britton Condominium, commenced this actionagainst the defendant, C.H.P.Y. Realty Associates, an owner of commercial units in thecondominium building, for a judgment declaring that the plaintiff has the right to enter one ofthose units for the purpose of accessing certain water pipes in order to alter and repair the same.In an order entered February 2, 2011, the Supreme Court granted the plaintiff's motion for apreliminary injunction and directed the defendant to grant the plaintiff access to the subject unitfor the purpose of altering and/or repairing certain water pipes. The order was resettled in anorder entered September 8, 2011. Additionally, in an order entered June 27, 2011, the SupremeCourt, inter alia, denied, in effect, that branch of the defendant's motion which was to vacate thepreliminary injunction pursuant to CPLR 6314.
"To obtain a preliminary injunction, a movant must establish, by clear and convincingevidence, (1) a likelihood of success on the merits, (2) irreparable injury absent a preliminaryinjunction, and (3) a balancing of the equities in the movant's favor" (Arthur J. Gallagher & Co. v Marchese,96 AD3d 791, 791-792 [2012]; seeL & M 353 Franklyn Ave., LLC v S. Land Dev., LLC, 98 AD3d 721 [2012]; 91-54 Gold Rd., LLC v Cross-DeeganRealty Corp., 93 AD3d 649 [2012]). "The purpose of a preliminary injunction is tomaintain the status quo pending determination of the action" (Coinmach Corp. v Alley Pond Owners Corp., 25 AD3d 642, 643[2006]; see Automated Waste Disposal,Inc. v Mid-Hudson Waste, Inc., 50 AD3d 1072 [2008]; Kelley v Garuda, 36 AD3d 593,596 [2007]).
Here, although the plaintiff may ultimately be successful in this action, the resettled order ofthe Supreme Court entered September 8, 2011, effectively altered the status quo and granted theplaintiff the exact relief which it sought in the complaint (see 306 Rutledge, LLC v City of New York, 90 AD3d 1026 [2011];SHS Baisley, LLC v Res Land, Inc.,18 AD3d 727, 728 [2005]). Furthermore, the plaintiff failed to demonstrate that it wouldsuffer irreparable harm in the absence of a preliminary injunction (see Trump on the Ocean, LLC v Ash,81 AD3d 713, 716 [2011]; Mar vLiquid Mgt. Partners, LLC, 62 AD3d 762, 763 [2009]). Accordingly, the plaintiff'smotion for a preliminary injunction should have been denied.
The defendant's remaining contentions either are without merit, need not be reached in lightof our determination, or are improperly raised for the first time on appeal. Skelos, J.P., Balkin,Dickerson and Hinds-Radix, JJ., concur.