Opinion
October 23, 1975
Order, Supreme Court, New York County, entered May 1, 1975, granting, inter alia, plaintiff's motion for a mandatory preliminary injunction directing defendant to remove certain agricultural supplies, equipment and structures from the roof and penthouse terrace of plaintiff's apartment building, unanimously modified, on the law, on the facts and in the exercise of discretion, to the extent of (1) requiring defendant to remove all such items only (a) from the roof and (b) from his penthouse terrace insofar as may be necessary to comply with notices of violation heretofore issued; and (2) increasing plaintiff's undertaking to the sum of $15,000. Except as so modified, said order is affirmed, without costs and without disbursements. On the record before us, the mandatory injunction granted was overbroad to the extent indicated. While appellant has no clearly shown right to use the common roof of this co-operative apartment house for his horticultural enterprise, his use of his own apartment for such purpose should be restricted only to the extent necessary to comply with the building code. Finally, in view of the conflicting estimates of the damage such removal will cause defendant, if he eventually prevails, we have determined that the undertaking fixed below was insufficient. Settle order on notice.
Concur — Stevens, P.J., Markewich, Murphy, Lupiano and Lane, JJ.