December 17, 2009.
Recitation, as required by CPLR 2219 [a], of the papers considered in the review of this (these) motion(s):
Papers NumberedPltf's OSC (prelim injunction) w/RL, ML affid, summons complaint (sep), exhs ....... 1,2 Def's opp w/BW affirm, BH, DRS affid, exhs ....................... ................... 3 Steno Minutes 10/22/09 ....................................... ....................... 4 Correspondence dated 1/28/09 (plaintiff), 1/29/09 (defendant) ......... .............. 5,6 Upon the foregoing papers, the decision and order of the court is as follows:
This action is for a declaratory judgment and a permanent injunction. Plaintiff 1010 Tenants Corp., ("plaintiff" at times "the coop" or "lessor") is the owner of a residential building located at 1010 Fifth Avenue, New York, New York ("building"), defendant Barbara Hubshman ("Hubshman" sometimes "lessee") is the proprietary lessee of a coop apartment in that building. Presently before the court is the coop's motion for a preliminary injunction, requiring Hubshman:  to permit the coop access to the terrace adjacent to her penthouse apartment and  cooperate with the removal of her roof garden so that the coop can replace the membrane on the terrace. Hubshman opposes the motion on the basis that plaintiff is seeking the ultimate relief in the case and for other reasons addressed at greater length herein. After this motion was submitted, the coop sent the court a letter explaining that it had made a "mistake" in the complaint and, therefore, this motion. Although Hubshman opposes consideration of that letter, both letters are accepted and considered for reasons that will be made clear later in this decision.
The court's decision and order is as follows:
There are only two penthouses in the building. Hubshman has been the proprietary lessee of "Penthouse West" ("penthouse") since 1979. The penthouse has an outdoor terrace which is landscaped and covered with a number of trees, plants and other foliage. According to the coop, the membrane under the roof garden is twenty (20) years old, has failed and has caused ongoing water leaks into apartment 14F, which is directly below the terrace. Apartment 14F was recently sold and, according to the coop, the new owners cannot move in because of the leaks in their apartment. The new owners of 14F are also reportedly considering a lawsuit against the coop and have demanded (and received) a temporary reduction in their maintenance charges.
The coop and Hubshman have each hired professionals to inspect the outdoor terrace and apartment 14F to determine the source of the leaks and what can be done to fix the problem. According to the coop's architect ("Zimmerman") and its contractor ("Herbert Rose"), the problem is the "mature trees and various types of foliage . . ." in the roof garden. Zimmerman believes the trees "most likely have extensive root systems . . .[that] can infiltrate any of the seams in the rubberized membrane and extend within the roof surface. . ." These opinions are expressed in a report by Zimmerman to the coop dated July 8, 2009. Zimmerman recommends the complete removal of "all the plantings . . ." on the roof and the installation of "a seamless roof system such as a liquid applied membrane. . ." Although Herbert Rose has repaired some areas of the roof terrace membrane, Zimmerman opines that it is nearly impossible to identify and permanently resolve all the compromised areas through the use of patches. Zimmerman claims he inspected apartment 14F and observed "active" leaks in that apartment.
The coop then hired an engineer ("Rand") to inspect the penthouse and apartment 14F. According to Rand's report dated August 10, 2009, sections of the concrete slab in apartment 14F has "spalled" (chipped, flaked, etc.) and steel is exposed. The engineer reportedly observed active leaks in apartment 14F near a drain line that "drips on a daily basis." Rand, like Zimmerman, recommends a complete removal of the roof garden, installation of new seamless liquid-applied membrane, and repairs to apartment 14F. The engineer also recommends that the coop re-evaulate "such a large and extensive . . ." roof garden.
At the end of July 2009, Hubshman's engineers and architects ("WJE") did their own inspection of the terrace and apartment 14F. They were accompanied by the coop's engineer and contractor. Before WJE did its inspection, it had the coop's contractor (Herbert Rose) identify where leaks had previously been reported in apartment 14F and what had been patched. In its site visit report dated July 31, 2009, WJE noted several dried water stains, but indicated there were no active leaks in those areas. There was one active leak, but it was below a window. WJE also observed that the roof drain was dripping, bu there no leak from the pipe.
Based upon these conflicting reports, Hubshman argues that the coop is being unduly alarmist about the conditions in apartment 14F
While the parties agree that paragraph 7 of the proprietary lease entitled "Penthouses, Terraces and Balconies" ("paragraph 7") is the operative provision that pertains to their present dispute, each side has a different interpretation of it. In relevant part, paragraph 7 to provides as follows:
"7. If the apartment includes a terrace, balcony, or a portion of the roof adjoining a penthouse, the Lessee shall have and enjoy the exclusive use of the terrace or balcony or that portion of the roof appurtenant to the penthouse, subject to the provisions of his lease and to the use of the terrace or balcony by the Lessor to the extent herein permitted [* * *] No top soil, earth, trees, bushes or other planting, fences, structures or lattices shall be erected or installed on the terraces, balconies, or roof of the building without the prior written approval of the Lessor, which approval shall not be unreasonably withheld, except that such approval shall not be required for any existing top soil, earth, trees, bushes or other planting, fences, lattices, or for the replacement of same. Any top soil, earth, trees, bushes or other planting or other structures erected or installed by the Lessee or his predecessor in interest, may at the expense of the Lessor, be removed for the purpose of repairs, upkeep or maintenance of the building, provided that Lessor shall, at its expense, restore anything which has been removed with a like item of substantially the same quality and appearance . .,"
[* * *]
"If the Lessor is required, by the terms of this lease, to perform any work on the portion of the roof appurtenant to a penthouse it shall submit to the Lessee its proposed contract for the performance of the same. Lessee shall have five (5) business after receipt of such contract within which to notify the Lessor in writing whether or not Lessee elects to perform such work, the price for such work set forth in its proposed contract for the performance of the same, or such lesser sum as lessee expends for such work. If an emergency requires immediate repairs, then Lessor may immediately perform such work as is necessary to deal with the emergency and thereafter the foregoing provisions shall be applicable to the performance of any additional work in connection with the condition which gave rise to the emergency."
The coop argues that it has met all three requirements for a preliminary injunction because it has shown a likelihood of success on the merits, irreparable harm and the balancing of the equities in its favor. According to the coop, it has the right to decide whether the repairs are need, it is authorized to make the repairs, even if it requires the removal of the roof garden, it does not need Hubshman's consent to make the repairs, although she can do them herself, and the coop has provided Hubshman with a proposed contract for the repairs which she has not responded to. The contract referred to is by Herbert Rose, dated July 19, 2009. There is also a landscaping proposal by Scott Landscape, Inc., dated August 18, 2009.
Although Hubshman acknowledges she received the landscape proposal, she denies every receiving the July 19, 2009 proposal from Herbert Rose. Thus, Hubshman argues that the coop has not complied with a necessary condition of paragraph 7, and therefore, has not shown a likelihood of success on the merits. In any event, Hubshman argues there is no emergency condition, the owners of 14F have not provided their sworn affidavits in support of plaintiff's motion, and there is no reason the roof garden has to be completely removed because the leaks are due to poorly done pointing at the building. Hubshman argues the coop is seeking a preliminary injunction that is exactly the same as the permanent injunction or ultimate relief sought in the case and therefore, the preliminary injunction must be denied for that reason alone.
After this motion was submitted, each side wrote to the court about a "mistake" contained in the complaint, and therefore, plaintiff's motion. The disagreement is over whether the coop ever sent Hubshman Herbert Rose's proposed contract dated July 19, 2009. The coop now takes the position that it may not have sent Hubshman the Herbert Rose proposed contract dated July 19, 2009 after all, but this does not matter because the Herbert Rose proposed contract and the Scott Landscape proposal are "nearly identical."
The party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor (see CPLR § 6301; Nobu Next Door, LLC v. Fine Arts Housing, Inc., 4 NY3d 839; Aetna Insurance Co., Inc. v. Capasso, 75 NY2d 860; W.T. Grant Co. v. Srogi, 52 NY2d 496). Although the party seeking a preliminary injunction does not have to provide conclusive proof of its right to such relief, and a preliminary injunction can, in the court's discretion, even be issued where there are disputed facts (Terrell v. Terrell, 279 A.D.2d 301 [1st Dept 2001]), generally a preliminary injunction will be denied unless the relief is necessitated and justified from the undisputed facts (O'Hara v. Corporate Audit Co., 161 AD2d 309 [1st Dept 1990]).
In this context, "irreparable injury" means a continuing harm resulting in substantial prejudice caused by the acts sought to be restrained if permitted to continue pendente lite, and if granted, tailored to fit the circumstances so as to preserve the status quo to the extent possible (generally, Second on Second Café, Inc. v. Hing Sing Trading, Inc., 66 AD3d 255 [1st Dept 2009]).
The coop has not shown that it submitted Herbert Rose's proposed contract for the work to Hubshman before bringing this motion for a preliminary injunction and, therefore, Hubshman's time to notify the coop of whether she has elected to do the work herself or let the coop do it has not been triggered. The claim (made in the correspondence that plaintiff sent to the court) that the Scott Landscape proposal is "identical" to the Herbert Rose proposed contract, is not supported the facts. The Scott Landscape proposal is, by its very terms, limited to excavation and removal of plant material and soil. On the other hand, the Herbert Rose proposal is for removal of the membrane, work to the concrete deck, installation of brick pavers and installation of a new liquid roofing system. Notably, neither proposal addresses restoration of the roof garden, as paragraph 7 provides. Failure to comply with this condition (providing the proposed contract) is, alone, reason to deny the coop's motion for a preliminary injunction because it has not demonstrated the likelihood of success on the merits ( see CPLR § 6301;Nobu Next Door, LLC v. Fine Arts Housing, Inc., supra; Aetna Insurance Co., Inc. v. Capasso, supra; W.T. Grant Co. v. Srogi, supra).
Even were the court to find that the coop has substantially complied with the conditions of paragraph 7 (i.e., it provided a proposed contract to the lessee), the undisputed facts do not support, necessitate, or justify the issuance of a preliminary injunction, requiring Hubshman to permit the coop access to roof garden because the coop has not shown irreparable harm. Although coop's motion contains repeated references to threatened legal action against the coop by the new owners of 14F concerning the active leaks in their apartment, and desire to move in, the owners of 14F have not provided the coop with a sworn statement to that effect. In any event, threatened legal action for monetary damages does not support a claim of irreparable harm. Furthermore, the professionals disagree whether the leaks have now stopped because of certain patches that were done and whether the source of ongoing leaks is the roof garden or water seeping through the brick walls (i.e. a pointing issue).
The coop has not shown the balancing of equities in its favor. Paragraph 7 of the proprietary lease allows the lessee (Hubshman) to keep or install "top soil, earth, trees, bushes or other planting . . ." on the terrace, etc., appurtenant to Hubshman's penthouse apartment. In its present state, the planting is sufficiently unique that the balance of the equities lie in Hubshman's favor (see, Trimboli v. Irwin, 18 AD3d 866 [2nd Dept 2005]).
In bringing this motion for a preliminary injunction, the coop seeks the ultimate relief, which is access to Hubshman's roof garden so it can be removed and the membrane replaced. The coop has not shown that the present circumstances are "imperative, urgent, or [of] grave necessity" to warrant such relief (Sithe Energies, Inc. v. 335 Madison Ave., LLC, 45 AD3d 469, 470 [1st Dept 2007]), or that the status quo would be disturbed. Thus, the coop is not entitled to receive pendente lite the ultimate relief sought (St. Paul Fire and Marine Ins. Co. v. York Claims Service, Inc., 308 AD2d 347 [1st Dept 2007]). The coop's motion for a preliminary injunction requiring Hubshman to grant access to the terrace/roof garden adjacent to her penthouse apartment is denied.
The motion by plaintiff 1010 Tenants, Corp. for a preliminary injunction is hereby denied.
Since a preliminary conference has not yet been held in this case, it is hereby scheduled for January 28, 2010 at 9:30 a.m. in Part 10, 60 Centre Street, Room 232. No further notices will be sent.
Any relief requested that has not been addressed has nonetheless been considered and is hereby expressly denied.
This constitutes the decision and order of the court.