444 E. 86th Owners Corp. v 435 E. 85th St. Tenants Corp.

444 E. 86th Owners Corp. v 435 E. 85th St. Tenants Corp. 2012 NY Slip Op 02275 Decided on March 27, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 27, 2012
Saxe, J.P., Sweeny, Catterson, Renwick, Manzanet-Daniels, JJ.
7205N 106047/09

[*1]444 East 86th Owners Corp., Plaintiff-Appellant,

v

435 East 85th Street Tenants Corp., Defendant-Respondent.




Dunnington Bartholow & Miller, LLP, New York (Carol A.
Sigmond of counsel), for appellant.
Gallet Dreyer & Berkey, LLP, New York (Joseph V. Aulicino
of counsel), for respondent.

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered July 18, 2011, which denied plaintiff's motion for a preliminary injunction to enjoin defendant from continuing to damage its garage roof, and continued and extended an earlier order, same court and Justice, entered on or about May 27, 2010, to the extent of directing that plaintiff commence the probes of the garage roof on August 1, 2011, unanimously affirmed, with costs.

As the court properly found, because there remained a difference of expert opinion regarding the cause and location of the water infiltration to the garage roof, the prior probe order must be continued to determine the party responsible for correcting the continuing water damage. In addition, as the court properly found, even if plaintiff could show that it was likely to succeed on the merits of its claim, it failed to demonstrate irreparable injury in the absence of an injunction and a balance of equities in its favor (see Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]; see also CPLR 6301). Indeed, the record shows that plaintiff failed to comply with the court's prior probe order and that any injury could be compensated by monetary damages (see Famo, Inc. v Green 521 Fifth Ave. LLC, 51 AD3d 578 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 27, 2012

CLERK