Wright v Board of Mgrs. of 57 E. 73rd St. Condominium 2024 NY Slip Op 31412(U) April 18, 2024 Supreme Court, New York County Docket Number: Index No. 651658/2024 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
INDEX NO. 651658/2024 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/18/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART 59 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 651658/2024 JAMES WRIGHT, MOTION DATE 04/18/2024 Plaintiff, MOTION SEQ. NO. 001 - V -
BOARD OF MANAGERS OF 57 EAST 73RD STREET ORDER-AMENDED CONDOMINIUM, and A.Y. STRAUSS, LLC, RESETTLED (MOTION RELATED) Defendants. ------------------------------------------------------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 17, 18, 19, 21, 22, 23 were read on this motion to/for PRELIMINARY INJUNCTION
ORDER
Upon the foregoing documents, it is
ORDERED that the Order of April 18, 2024, resolving motion
sequence numbers 001 in this action is VACATED, RESETTLED, and
CORRECTED pursuant to CPLR § 5019 (a) [see Kiker v Nassau County,
85 NY2d 879 (1995)] as follows:
ORDER
Upon the foregoing documents, it is
ORDERED that the motion of plaintiff for a preliminary
injunction is DENIED; and it is further
ORDERED that defendants shall answer the complaint or
otherwise move, within twenty (20) days of service of this order
with notice of entry; and it is further
651658/2024 WRIGHT, JAMES vs. BOARD OF MANAGERS OF 57 EAST 73RD STREET Page 1 of4 CONDOMINIUM ET AL Motion No. 001
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ORDERED that counsel are directed to post on NYSCEF a
preliminary discovery conference order or competing preliminary
discovery conference order(s) at least two days before June 18,
2024, on which date counsel shall appear via Microsoft Teams,
unless such appearance be waived by the court.
DECISION
On his application for a preliminary injunction,
"plaintiff[] is required to demonstrate a likelihood of ultimate
success on the merits, irreparable harm and that [the] equities
of the situation were in [his] favor" (After Six Inc. v 201
East 66 th Street Associates, 87 AD2d 153 [1 st Dept 1982])
With respect to the first prong, plaintiff has not stated a
meritorious cause of action, let alone a likelihood of success
on the merits, as to his claim for declaratory relief that
asserts breach of the Settlement Agreement dated August 31,
2023. See Ithilien Realty Corp v 180 Ludlow Development LLC,
140 AD3d 621 (1 st Dept 2016) and Upfront Megatainment, Inc. v
Thi am, 215 AD3d 5 7 6 (1s t Dept 2 02 3) .
Plaintiff seeks permanent injunctive relief on his claims
for (1) interference with the Contract of Sale dated September
1, 2023, and (2) by way of specific performance by defendant
Board of Managers of 57 East 73 rd Street Condominium, alleging
bad faith in defendant Board's obligations of its obligations
under the Settlement Agreement.
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By its very nature, success on a claim of interference with
Contract would not entitle plaintiff to equitable relief, and so
such claim lacks merit to that extent. Should plaintiff prevail
on such claim against defendant Board, his measure of damages
would be monetary and not equitable. See MUGF Union Bank, NA v
Axos Bank, 196 AD3d 442 (l3t Dept 2021).
To the extent he seeks a preliminary injunction with
respect to his claim for specific performance of the obligations
of defendant Board, plaintiff has shown some likelihood of
success on the merits. See Destiny USA Holdings, LLC v
Citigroup Global Markets Realty Corp., 69 AD3d 212 (4 th Dept
2009) .
However, plaintiff has failed to demonstrate irreparable
harm should the court not enjoin defendant Board from extending
his time to close, as monetary damages are ascertainable for any
losses, including a refund of any downpayment, that plaintiff
will suffer with respect to his inability to consummate the
Contract of Sale dated September 1, 2023, that arise from any
illegal acts of defendant Board. The same is true to the extent
that the filing of the confession of judgment triggers
plaintiff's inability to consummate the Contract of Sale, as a
result of defendant Board's breach of the Settlement Agreement.
Nor has plaintiff established irreparable injury arising
from the filing of the confession of judgment, as the "possible"
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adverse action of FINRA with respect to plaintiff's securities
brokers license is "speculative" (Matter of P.& E. T.
Foundation, 204 AD3d 1460, 1461 [4 th Dept 2022] ("the prospect of
irreparable harm must not be . 'speculative'").
Finally, the court finds the equities are equally balanced.
See New York City Off-Track Betting Corp v New York Racing Assn
Inc, 250 AD2d 437 (1 st Dept 1998).
.v-~ fl - } ~ 20240418162950DJAMES544EE0A54B5D49D4B07B18412F55B684
4/18/2024 DATE DEBRA A. JAMES, J.S.C.
~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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