Cox v St Owner LP

[*1] Cox v St Owner LP 2009 NY Slip Op 51953(U) [25 Misc 3d 1201(A)] Decided on August 27, 2009 Supreme Court, New York County James, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through September 23, 2009; it will not be published in the printed Official Reports.

Decided on August 27, 2009
Supreme Court, New York County

Brian F. Cox, Individually and as the Executor and Voluntary Administrator of the ESTATE OF MARJORIE PHYLLIS COX, Plaintiff,

against

St Owner LP, Defendant.



114062/08



Plaintiff Attorney

Kenneth B. Hawco, Esq.

500 West End Avenue

New York, NY 10024

212-874-7717

Defendant Attorney

Belkin Burden Wenig & Goldman, LLP

270 Madison Avenue

New York, NY 10016

212 867-4466

Debra A. James, J.

The court shall deny plaintiff's motion for a preliminary injunction barring defendant from commencing a summary eviction proceeding in New York City Housing Court during the pendency of plaintiff's succession rights declaratory judgment action.

Plaintiff is the Executor and Administrator of the Estate of Marjorie P. Cox. Marjorie Cox leased the apartment located at 620 East 20th Street, Apartment 5-D, New York, New York. Plaintiff argues that he has succession rights to this apartment as a "nontraditional family member" under the Rent Stabilization Code section 2523.5(b)(1) because he occupied the apartment for two years prior to the leaseholder's death and maintained an emotional and financial commitment and interdependence to the decedent. Plaintiff seeks a judgment declaring that he has the right to remain in possession of this apartment until June 30, 2009 and succeed to the rent stabilized tenancy rights.

Marjorie P. Cox, who died on December 12, 2007, possessed a renewal lease for the period of March 16, 2007 through June 30, 2009. In her will, she named Doris A. Cox, her sister-in-law and plaintiff's mother, as Executor and Administrator followed by plaintiff if Doris Cox was unable to execute such responsibilities. Doris Cox withdrew and Brian Cox was named the Executor and Administrator of the Estate on September 23, 2008.

Plaintiff seeks a preliminary injunction barring the defendant from commencing a summary eviction proceeding against him in the New York City Housing Court during the pendency of this action. Plaintiff does not dispute that the Housing Court is the preferred venue for resolving landlord-tenant disputes, but alleges that he will suffer irreparable injury if the defendant is permitted to commence a proceeding in the Housing Court as a result of the practices of the New York State Office [*2]of Court Administration (OCA). OCA sells electronic data to companies known as tenant screening bureaus (TSBs), which then report the information to other companies and prospective landlords. The data contains information on any proceeding commenced in Housing Court, and prospective landlords use these reports to screen housing applicants.

Plaintiff argues this process inflicts a blacklisting injury. Once a summary proceeding is commenced, a tenant's name, as a party in the suit, is listed in the data sold to TSBs, and landlords use this list during the screening process to reject prospective tenants. Plaintiff contends that such blacklisting constitutes an immediate irreparable injury because it will prevent him from renting other premises in the future.

The purpose of a preliminary injunction is to protect the movant through preservation of the status quo until there is a determination on the merits of the litigation. (13 Weinstein-Korn-Miller, NY Civ Prac ¶6301.02[3]). Such relief is granted "where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done an act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff." CPLR 6301. The party seeking such relief must establish a likelihood of success on the merits, irreparable injury, and a balancing of the equities the movant's favor. Doe v Axelrod, 73 NY2d 748, 750 (1988).

Generally, the injunction will be issued only upon a showing that the "defendant's wrongful acts are occurring or are threatened and reasonably likely to occur". Siegel, NY Prac §328, at 499 (3d ed). [An] injunction should be granted if the activity complained of will cause irreparable injury to the party seeking such relief before a trial can be held to resolve the underlying controversy. 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. Chrysler Corp.v Fedders Corp., 63 AD2d 567, 569 (1st Dept 1978). (Underlining supplied.)

Applying the aforementioned principles, the court holds that the irreparable injury alleged by plaintiff here is not caused by the defendant's acts but instead results from the acts of OCA and/or its vendee TSBs. Although plaintiff would be entitled to an injunction if restraining the defendant from the commission or continuance of an act would prevent irreparable injury to the plaintiff, such an act on the part of the defendant is not [*3]demonstrated here.

Plaintiff argues that his blacklisting concern is similar to what the First Department has deemed as an irreparable injury when it determined that "irreparable damages can result from credit reporting agencies." DeCastro v Bhokari, 201 AD2d 382, 383 (1st Dept 1994). There the Court held that "irreparable harm would ensue if the cooperative were not restrained from cancelling plaintiff's shares or issuing negative information with respect to the rent strike participants to credit reporting agencies." Id. In that case, the movant-shareholders were seeking to restrain the cooperative board from issuing negative information to credit reporting agencies. Unlike DeCastro, plaintiff here seeks to restrain the defendant in order to prevent an irreparable injury that is caused by an act of OCA — the practice of reporting data to TSBs. The defendant is not generating the data to the TSBs and defendant's actions are not creating the blacklisting harm.

Furthermore, the court agrees with defendant's argument that its actions cannot be deemed an irreparable injury since "the danger of impending judicial proceedings is not an injury justifying an injunction." Spellman v Patrick, 90 AD2d 791 (2d Dept 1982) (citation omitted). In Spellman, the court stated that "it has been consistently held that a preliminary injunction restraining an eviction may not be granted in favor of a tenant on facts which may be effectively interposed as a defense in summary eviction proceedings." Id. (citations omitted). The court therefore finds that plaintiff has failed to establish that there is an act of the defendant that causes an irreparable injury and should be restrained.[FN1]

The blacklisting effect that may result from OCA's practice of selling data to TSBs is a realistic concern for prospective tenants. Indeed, a recentsettlement indicates that inaccurate reporting by TSBs may cause injury to tenants. However, the remedy promulgated, an expungement process to correct inaccurate data, only targets the named TSB. See White v First Advantage SafeRent, Inc., f/k/a Registry, Inc., 2007 WL 703926 96 (US Dist Ct, SD NY, 04 Civ 01611, Kaplan, J., March 7, 2007). Realizing that there are numerous TSBs, this court acknowledges that [*4]prospective tenants are still faced with the possibility of being blacklisted when seeking accommodations. Unlike White, however, the actions sought to be restrained are those of the landlord and not of a TSB and therefore the remedy in that case is not available here.

Accordingly, it is

ORDERED that the plaintiff's motion for a preliminary injunction is DENIED, and the temporary restraining order is VACATED; and it is further

ORDERED that the defendant is directed to answer or move within 20 days pursuant to CPLR 3211 (f) and the so-ordered stipulation of the parties dated October 23, 2008, upon service of this Order with notice of entry; and it is further

ORDERED that all parties shall appear at a preliminary conference to ascertain the status of this action on October 27, 2009, at 9:30 A.M., in Part 59, Room 1254, 111 Centre Street, New York, New York 10013.

This is the decision and order of the court.

Plaintiff Attorney

Kenneth B. Hawco, Esq.

500 West End Avenue

New York, NY 10024

212-874-7717

Defendant Attorney

Belkin Burden Wenig & Goldman, LLP

270 Madison Avenue

New York, NY 10016

212 867-4466 Footnotes

Footnote 1: Braschi v Stahl Assoc. Co., 74 NY2d 201 (1989) is not to the contrary. In Braschi, the Court of Appeals reversed the Appellate Division order and reinstated the trial court's stay of eviction with respect to a summary proceeding against a gay surviving partner, who asserted a succession rights claim. Though seemingly the trial court order, reinstated by the Court of Appeals, found that the Braschi plaintiff met the irreparable injury standard, in fact, the defendant's only opposition to the relief requested was as to the merits of the plaintiff's claim. Braschi v Stahl Assoc. Co., Index No. 002194/87, 1987 WL 343445 (Sup Ct, NY County, March 27, 1987).