Opinion
1260/05.
Decided May 25, 2005.
Upon the foregoing papers, plaintiff Lydia Valdez moves for an order preliminarily enjoining the defendant Northeast Brooklyn Housing Development Corp. from: (1) interfering with plaintiff's possessory right to her apartment located at the JVA Houses LP, 851 Hegeman Avenue in Brooklyn and (2) breaching the subject relocation agreement between the parties. Defendant opposes the motion on the ground that plaintiff has not demonstrated her entitlement to a preliminary injunction.
In the instant action, plaintiff seeks a declaratory judgment determining the rights of the parties pursuant to a relocation agreement and notices of non-displacement, specific performance of the agreement and a permanent injunction enjoining defendant from taking any steps to interfere with plaintiff's possessory right in her apartment and from breaching the agreement. The action stems from a relocation agreement executed by plaintiff on or about October 14, 2003 (the Agreement). The Agreement states, in relevant part:
I, Lydia Valdez, a tenant in 851 Hegeman Avenue, Apartment 2C have agreed to be temporarily relocated to 685 Essex Street, Apt. 1.
I have committed to move out of my apartment from 10/15/03 to [sometime during] 10/04. The manager indicated that the work on my apartment will occur from 10/03 to 10/04. At the completion of the work in my apartment, I will have the right to move back to apartment No. cluster and I agree to so move.
On or about November 30, 2002 and May 19, 2003, prior to signing the Agreement, plaintiff received Notices of Non-Displacement (the Notices). With regard to the subject relocation, said notices both stated, in relevant part, that:
You were recently notified that your building will be renovated under the Neighborhood Redevelopment Program (NRP).
This is a notice of non-displacement. You will not be required to move permanently as a result of the rehabilitation. The notice guarantees you the following:
1. You will be able to lease and occupy your present apartment (or another suitable, decent, safe and sanitary apartment in the same building/complex) upon completion of the rehabilitation.
Plaintiff claims that she understood the Agreement to ensure her return to the "cluster" of apartments located at 851 Hegeman Avenue. Defendant, however, which took over the management of the buildings in July 2004, decided to relocate plaintiff to a building located at 379 Elton Street. Plaintiff avers that the 379 Elton Street building is located in "a strange and less desirable neighborhood [which] upon information and belief, is a high crime area." Defendant contends that such a move is permitted pursuant to the Agreement and the Notices because the 379 Elton Street building is part of the housing "cluster" or "complex" referred to in those documents. In additional, defendant states that there are 16 buildings in said cluster and that, in any event, most of the apartments located at 851 Hegeman have been converted to one-bedroom apartments and the three bedroom apartment formerly occupied by plaintiff at that location no longer exists. Plaintiff, however, maintains that she was never informed that the "cluster" referred to in the Agreement or the "building/complex" referred to in the Notices consisted of a group of sixteen distinct buildings located on several different streets.
It is well established that a party seeking a preliminary injunction must demonstrate the probability of success on the merits, danger of irreparable harm in the absence of an injunction, and a balance of the equities in his or her favor ( Aetna Ins. Co. v. Capasso, 75 NY2d 860, 862; Doe v. Axelrod, 73 NY2d 748, 750; Sheffield Towers Rehabilitation and Health Care Ctr. v. Novasso, 293 AD2d 182, 185; Neos v. Lacey, 291 AD2d 434, 435; State v. Premier Color of NY, Inc., 285 AD2d 544 ; State v. Sour Mountain Realty, Inc., 276 AD2d 8, 15; Klein, Wagner Morris v. Klein, 186 AD2d 631, 632; Northeast Hotel Assocs. v. Natl. Advertising Co., 155 AD2d 520, 521). "Moreover, the remedy of granting a preliminary injunction is a drastic one which should be used sparingly, and which will not be granted absent a showing that there is a clear right to such relief on the undisputed facts presented" ( Schneider Leasing Plus, Inc. v. Stallone, 172 AD2d 739, 740 [internal quotation marks and citations omitted], lv dismissed 78 NY2d 1043; see also William M. Blake Agency, Inc. v. Leon, 283 AD2d 423, 424 ["preliminary injunctive relief is a drastic remedy which will not be granted unless a clear right thereto is established under the law and the undisputed facts upon the moving papers, and the burden of showing an undisputed right rests upon the movant"] [internal quotation marks and citations omitted]; Romance Bridals v. 1385 Broadway Co., 43 AD2d 544 ["clear legal right to the relief sought" must be demonstrated to obtain preliminary injunctive relief]). "Bare conclusory allegations are insufficient to support a motion for a preliminary injunction" ( Kaufman v. Intl. Business Machines Corp., 97 AD2d 925, 926, aff'd 61 NY2d 930); and, the proof establishing the foregoing elements "must be by affidavit and other competent proof, with evidentiary detail" and "[i]f key facts are in dispute, the relief will be denied" ( Faberge Intl v. Di Pino, 109 AD2d 235, 240).
CPLR 6312 (c), was amended in 1996, and provides as follows: (c) Issues of fact. Provided that the elements required for the insurance of a preliminary injunction are demonstrated in the plaintiff's papers, the presentation by the defendant of evidence sufficient to raise an issue of fact as to any of such elements shall not in itself be grounds for denial of the motion. In such event the court shall make a determination by hearing or otherwise whether each of the elements required for issuance of a preliminary injunction exists.
The court is mindful, however, that "it is not for this court to determine finally the merits of an action upon a motion for preliminary injunction; rather, the purpose of the interlocutory relief is to preserve the status quo until a decision is reached on the merits" ( Gambar Enterprises, Inc. v. Kelly Servs., Inc., 69 AD2d 297, 306 [internal quotation marks and citation omitted]). Therefore, a preliminary injunction may also be granted where injunctive relief is deemed necessary to maintain the status quo, even if the movant's success on the merits cannot be determined at the time that the application for a preliminary injunction is brought ( Mr. Natural, Inc. v. Unadulterated Food Products, Inc., 152 AD2d 729, 730 ["the existence of a factual dispute will not bar the granting of a preliminary injunction if one is necessary to preserve the status quo and the party to be enjoined will suffer no great hardship as a result of its issuance"]; accord U.S. Ice Cream Corp. v. Carvel Corp., 136 AD2d 626, 628; Burmax Co. v. B S Indus., Inc., 135 AD2d 599, 600). Moreover, "where . . . the denial of injunctive relief would render the final judgment ineffectual, the degree of proof required to establish the element of likelihood of success on the merits should be reduced" ( State v. City of New York, 275 AD2d 740, 741; Republic of Lebanon v. Sotheby's, 167 AD2d 142, 145 [same]; see also Bisca v. Bisca, 108 Misc 2d 227, 233 ["(where) the purpose (of a preliminary injunction) is only to preserve the status quo, the strength and clarity of plaintiff's showing in support of the application as to his or her probabilities of success in the action, are not so important"]).
As a result, a preliminary injunction to maintain the status quo may be granted even where the court "ha[s] grave doubts regarding the likelihood of plaintiff['s] success on the merits" as long as the court finds that "if [the] preliminary injunction is not granted, any subsequent judgment might be rendered ineffectual" ( Schlosser v. United Presbyterian Home at Syosset, Inc., 56 AD2d 615). Generally, such a preliminary injunction is granted where injunctive relief will prevent the potential dissolution of an existing valuable asset or some comparable potential irreparable harm ( see e.g. id. at 615; Mr. Natural Inc., 152 AD2d at 730; U.S. Ice Cream Corp., 136 AD2d at 62; Burmax Co., Inc., 135 AD2d at 600).
In the instant case, plaintiff has not established a likelihood of success on the merits of her action. Although "all that must be shown is the likelihood of success; conclusive proof is not required ( Moy v. Umeki, 10 AD3d 604)," here, the court cannot, on the record before it, find that the plaintiff has established "by affidavit and other competent proof, with evidentiary detail" ( Faberge Intl, 109 AD2d at 240), that she is likely to prevail on her causes of action. The resolution of the instant case, turns upon, in essence, the definition of the term "cluster" in the Agreement. "[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" ( Greenfield v. Philles Records, Inc., 98 NY2d 562, 569; see also Matter of Wallace v. 600 Partners Co., 86 AD2d 543, 548 [1995) ; Breed v. Ins. Co. of North America, 46 NY2d 351, 355). "It is well settled that the interpretation of an unambiguous contract is a function for the court and matters extrinsic to the agreement may not be considered when the parties' intent can be gleaned from the face of the instrument" ( Sumitomo Bank of New York Trust Co. v. Town of North Hempstead, 278 AD2d 402, 403, lv appeal denied 96 NY2d 713; see also Lamont v. Story Book Homes, Inc., 288 AD2d 351-352). The meaning of a written agreement becomes an issue of fact, however, "when a term or clause is ambiguous and the determination of the parties' intent depends upon the credibility of extrinsic evidence or a choice among inferences to be drawn from extrinsic evidence" ( Manchester Technologies, Inc. v. Didata (NY) Inc., 303 AD2d 726).
In the instant case, although the Agreement appears to this court to be ambiguous with regard to the term "cluster," the record is not developed enough to allow this court to find that the plaintiff's interpretation of this term is likely to prevail. The court notes that the term "cluster", and the term "building/complex" which is contained within the Notices, both can be construed to connote a group of apartments or buildings either located in close proximity to one another or otherwise demonstrably connected; however, given the dearth of evidence as to the location of the subject buildings in relation to each other or other factual details relevant to ascertaining the meaning and scope of the term "cluster," any determination concerning the likelihood of the outcome of this case would necessitate inappropriate speculation, conjecture and surmise by the court. Accordingly, the court cannot find that plaintiff has established the likelihood of her success on the merits.
The court does find, however, that the imposition of a preliminary injunction in this case will serve the salutary purpose of preserving the status quo pending the outcome of plaintiff's action. It is well settled that the purpose of a preliminary injunction "is not to determine the ultimate rights of the parties, but to maintain the status quo until there can be a full hearing on the merits" ( Wellbilt Equipment Corp. v. Red Eye Grill, L.P., 308 AD2d 411; see also Olympic Tower Condominium v. Cocoziello, 306 AD2d 159, 160). Thus, even where the court "ha[s] grave doubts regarding the likelihood of plaintiff['s] success on the merits," a preliminary injunction is nonetheless appropriate where it appears that "if [the] preliminary injunction is not granted, any subsequent judgment might be rendered ineffectual" ( Schlosser, 56 AD2d at 615). In Schlosser, Special Term's grant of a preliminary injunction was affirmed where it was established that "many of the plaintiffs, all of whom are senior citizens, cannot afford the [subject] scheduled rent increase and have no alternative residence to avail themselves of during the pendency of the action," and the Special Term imposed the preliminary injunction because the ultimate grant of relief sought might have been rendered futile if plaintiffs were displaced from their apartments pending resolution of the action ( 56 AD2d at 615). Here, if the defendant is not enjoined from terminating or otherwise adversely affecting plaintiff's possessory interest in her former apartment located at 851 Hegeman Avenue, plaintiff may ultimately prevail in her interpretation of the contract and be entitled to an apartment located at 851 Hegeman Avenue, only to have to undergo further, potentially futile, litigation to re-gain possession of her former apartment or a comparable apartment located in the same building. Accordingly, defendant is preliminarily enjoined from taking any steps to terminate or otherwise interfere with or adversely affect plaintiff's possessory interest in Apartment 2C located at 851 Hegeman Avenue.
Although defendant claims that plaintiff's apartment has been modified (as have many of the apartments in the building) from a three bedroom to a one bedroom, and so implies that plaintiff's action to regain occupancy of her former apartment, or a comparable one in the same building, is futile, the court notes that plaintiff's concerns seem primarily related to the location of the building located at 851 Hegeman Avenue and her long history and contacts there (including her stewardship of the building's community garden) and the attachment of her young grandson to the building, rather than to the size and condition of the actual apartment in the building.
3 The court notes that one potential interpretation of the Agreement is that plaintiff is entitled to an apartment at 851 Hegeman Avenue, but not necessarily to the exact apartment she occupied prior to her relocation. As previously discussed, however, the court is constrained from interpreting the Agreement on this motion and so the preliminary injunction issued by the court is solely for the purpose of maintaining the status quo during the pendency of this action.
The court notes, however, that such injunctive relief, by necessity, is limited to enjoining defendant from taking any steps which terminate or otherwise interfere with plaintiff's possessory interest in her apartment at 851 Hegeman Avenue. To the extent plaintiff seeks to enjoin defendant from "breaching" the Agreement, such relief would, in effect, result in the granting to plaintiff of the ultimate relief sought by her in this action; namely, the adoption by this court of her interpretation of the Agreement and her concomitant entitlement to specific performance by defendant. A preliminary injunction, however, merely maintains the status quo between the parties and cannot serve as a summary resolution of the ultimate merits of the case (see Gambar Enterprises, Inc., 69 AD2d at 306). Accordingly, the preliminary injunction hereby issued by this court cannot encompass relief which determines the ultimate rights of the parties.
Pursuant to CPLR 6312[b], "a plaintiff is required to post an undertaking in an amount fixed by the court . . . and this requirement may not be waived" (see Rourke Developers Inc. v. Cottrell-Hajeck Inc., 285 AD2d 805. Given that plaintiff appears to derive her income primarily from social security benefits and defendant has not demonstrated that it will suffer any undue hardship as a result of the injunctive relief granted by the court, the court finds that an undertaking in the amount of $100.00 shall be good and sufficient for purposes of CPLR 6312 (b).
The foregoing constitutes the order and decision of the court.