Finegan Family, LLC v 77 Horatio St. Condominium

Finegan Family, LLC v 77 Horatio St. Condominium 2007 NY Slip Op 02434 [38 AD3d 365] March 20, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007

Finegan Family, LLC, Appellant,
v
77 Horatio Street Condominium et al., Respondents.

—[*1] Michael H. Kane, New York (Jonathan D. Golby of counsel), for appellant.

Victor Starsia, Brooklyn, for respondents.

Order, Supreme Court, New York County (Richard F. Braun, J.), entered September 5, 2006, which, to the extent appealed from, denied plaintiff's motion for a preliminary injunction and granted defendants' cross motion for a permanent injunction, unanimously affirmed, with costs.

Plaintiff, owner of the two top-floor apartment units, was granted an easement for the use of certain portions of the roof. Defendants decided to replace the roof and directed plaintiff to remove plants and furniture it had placed there. Plaintiff sought to enjoin defendants from taking any actions affecting its use of the roof. Defendants counterclaimed for a permanent injunction, inter alia, requiring plaintiff to remove its items from the roof.

The evidence submitted by defendants in support of their motion for summary judgment on the counterclaim, which plaintiff failed to contradict, negates plaintiff's conclusory assertions that the challenged actions of the board of managers were taken in bad faith or constituted improper disparate treatment of plaintiff. Accordingly, the motion court correctly determined as a matter of law that defendants' challenged actions were protected by the business judgment rule (see Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 537-540 [1990]). Furthermore, as a result of plaintiff's failure to demonstrate a likelihood of success on the merits of its claims, its motion for a preliminary injunction was properly denied (see Kimeldorf v First Union Real Estate Equity & Mtge. Invs., 309 AD2d 151, 160 [2003]). Concur—Mazzarelli, J.P., Friedman, Buckley, Catterson and Malone, JJ.