106 & 108 Charles LLC v Hohn

106 & 108 Charles LLC v Hohn 2012 NY Slip Op 04688 Decided on June 12, 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 June 12, 2012
Tom, J.P., Mazzarelli, Moskowitz, Renwick, Abdus-Salaam, JJ.
7912 103775/11

[*1]106 & 108 Charles LLC, Plaintiff-Appellant,

v

Gabriela Hohn, Defendant-Respondent.




Rose & Rose, New York (Todd Rose of counsel), for
appellant.
Jared M. Lefkowitz, New York, for respondent.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered June 20, 2011, which denied plaintiff landlord's motion for a preliminary injunction, unanimously affirmed, with costs.

Plaintiff seeks a preliminary injunction to: a) require defendant tenant to remove a partition she constructed in her studio apartment; and b) discontinue using the apartment as a part-time professional office for her psychology practice. Because plaintiff's motion seeks an order mandating specific conduct, plaintiff must show a clear right to relief (Second on Second Café, Inc. v Hing Sing Trading, Inc., 66 AD3d 255, 265 [2009] [movant must show that preliminary injunction mandating specific conduct is essential to preserve the status quo]).

The injunction was properly denied as to the renovation. Because defendant submitted unrebutted evidence that the predecessor landlord had consented to the renovation, she successfully raised the defense of waiver (see Haberman v Hawkins, 170 AD2d 377 [1991]). As such, plaintiff is unlikely to succeed on the merits. Moreover, while plaintiff described hypothetical injury from the renovation, such as possible criminal liability, it failed to establish irreparable harm (see Dua v New York City Dept. of Parks & Recreation, 84 AD3d 596 [2011]).

The injunction was also properly denied as to the therapy practice. Plaintiff failed to [*2]articulate any injury it would suffer as a result of the continuation of the practice. In this connection, we note that the defendant's use of the apartment was not in violation of the zoning regulations.

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

ENTERED: JUNE 12, 2012

CLERK