Essa Realty Corp. v J. Thomas Realty Corp.

Essa Realty Corp. v J. Thomas Realty Corp. 2010 NY Slip Op 01357 [70 AD3d 483] February 16, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 31, 2010

Essa Realty Corp., Respondent,
v
J. Thomas Realty Corp., Appellant.

—[*1] Mound Cotton Wollan & Greengrass, New York (Kevin F. Buckley of counsel), for appellant.

Silversmith & Veraja, LLP, New York (Steven L. Schultz of counsel), for respondent.

Order, Supreme Court, New York County (Carol Edmead, J.), entered on or about May 14, 2009, which granted plaintiff's motion for a preliminary injunction and directed defendant immediately to "stabilize" the wall of its building and provide plaintiff with drawings and schemata by May 19, 2009, unanimously reversed, on the law and the facts, with costs, and the motion denied. Order (same court and Justice), entered on or about June 1, 2009, which directed defendant to comply with the court's previous order by repairing gaps and/or cracks in the wall within 10 days, unanimously reversed, on the law, without costs, in view of the foregoing.

Plaintiff failed to show a likelihood of success on the merits, as there are disputed issues of fact and dueling expert testimony concerning whether defendant's building was leaning on—and thus causing damage to—plaintiff's building (see generally Blueberries Gourmet v Aris Realty Corp., 255 AD2d 348, 349-350 [1998]). Plaintiff also failed to demonstrate any formal notification that the exterior wall of defendant's building presented an "unsafe condition" (see Administrative Code of City of NY, tit 28, art 302, § 28-302.3 [New York City Construction Codes setting forth maintenance responsibilities, including inspection and reporting requirements]). The balancing of the equities favors defendant, which should not be compelled to physically alter its building on the basis of disputed facts. Concur—Gonzalez, P.J., Saxe, Moskowitz, Abdus-Salaam and RomÁn, JJ.