81-83 Rivington Corp. v D.A.B. Group LLC

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81-83 Rivington Corp. v D.A.B. Group LLC 2011 NY Slip Op 34209(U) June 3, 2011 Supreme Court, New York County Docket Number: 116974/10 Judge: Judith J. Gische Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] • 't! II ~ ' • .. . I ' I ' c I • • SUPREME COURT OF THE STATE OF NEW YORK IAS PART __________________________..__.... 10 COUNTY OF New YORK: ...., ~ . 81-83 RIVINGTON CORP., DECISION(ORDER Index No.: Seq. No.: Plaintiff, -against- 116794/10 001 PRESENT! Hon. Judith J 1 G)§~be J.S.C. D.A.B. GROUP LLC., Defendant. ----------------- -x FILED Recitation, as· required by CP.LR § 2219 [a] of the papers coJUft,Q§ i?PMe review of this (these) motion(s): NEW YORK COUNTY CLE~.'&6 Papers Pltrs osc (CPLR 6301) w/DRD affid, DG affid, exhs • • • • • • • • • • . • • Ders opp w/'llVGW affirm • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • Defs v. ans ••••.•••••••••••••••• , •••••••••••.••••• , • • . • . Pltrs reply affld (ORO) • • • • • • • • • • • . • • • . • • • • • • • • . • • • • . • • • • • • • ---·-...···---......................_ --...... ....... 1 2 3 3 •' ... ---~---------~------ -~.......__,..----..- Upon the foregoing papers, the decision and order of the court is as follows: Gische J.; Plaintiff moves by order to show cause to prelfminarily enjoin the defendant's alleged unlawful construction activity, pursuant to a zoning lot development agreement dated April 2, 2008 ("ZLDA"). For the reasons that follow, the motion Is granted. Plaintiff and defendant each own contiguous parcels of real property located in New York County, tax map Block 415. Plafntlff owns the land together with buildings and improvements thereon located at 81 Rlvlngton Street, Block 415, Lot 63 ("Lot Au). Defendant is the owner of the following parcels of land together with buildings and Improvements thereon: 79 Rlvington Street, Block 41 f>, Lot 62 (11Lot B"), n Rlvlngton -Page 1 of6· .. - . ,,, ..· .... , [* 2] • ' • .. ' t c Street, Block 415, Lot 61 ("Lot C"), 141 Orchard Street, Block 415, Lot 66 ("Lot D") and 139 Orchard Street Block 415, Lot 67 ("Lot E"). The parties executed the ZLDA in order to transfer development rights from plaintiff to defendant's property so that the defendant could build a hotel on its property. However, the ZLDA prohibits certain construction activity. Speclflcally, it provides as follows: Notwithstanding anything to the contr:ary set forth in this Agreement or any rights or privileges that may inure jo (defendant] by operation of law, [defendant] covenants to and wl~h [plaintiff] that (i) [defendant]'s New BJ.Jildfng shall be constructed solely on Lot D and/or Lot E and in no event on Lot B or Lot C. (ii) unless [defendant] acquires additional Floor Area Development Rights solely as the result of rezoning (and not as the result of the addition of lots to the Combined Zoning Lot} or unless required as the result of unforeseen events, (defendant] shall not alter the improvements located on Lot Band Lot C (collectively, the Lots B/C Buildings") in any manner that would cause the Lots B/C Buildings to extend beyond the respective heights, setbacks or articulations of the Lots B/C BuUdings as of the date hereof: and {iiQ [defendant] shall not, under any circumstances, use any of the Excess Zoning Rights in constructing any Improvements on Lot B and/or Lot C (Including any reconstruction, alteration or replacement of the Lots 8/C Buildings). Further, the ZLDA authorizes that in the event of any breach or threatened breach of ft by either party, the non·defaulting party "shall have the right to any remedy available at law or equity, Including, but not 11m1ted to, Injunctive rellef. 0 Plaintiff now claims tha~ the defendant is violating the ZLDA by constructing utilities a11d other Improvements on Lot B and Lot C. It has provided copies of plans filed by the defendant with the New York City Department of Buildings ("DOB"). Exhibit -Page 2 of6- • . I [* 3] I # "B" annexed to plaintiff's order to show cause fs a copy of Drawing No. S-1.00 entitled 11 Footi~g Foundation and Ground Floor Framing Plans" that shows that defendant plans to construct foundation footings on Lots B and C. Exhibit "C" annexed to plaintiff's order to show cause is a copy of Drawing NO. H301, entitled "HVAC Duct Plan" fhfJt shows that the defendant plans to construct a structure with duct work on Lots B and C. Plaintiff's counsel sent defendant's counsel an email which put the defendant on notice that its constructions violated the ZLDA. Plaintiff claims that the defendant refused to stop such activity, thereby necessitating the instant action. In the ~omplaint, • plaintiff seeks damages for the defendant's alleged breach ~f the ZLDA, a permanent Injunction enjoining further vfoJations thereunder, and an order directing the defendant • to restore Lot B and Lot C to what it was before such construction began. In Its reply papers, plaintiff provides.additionar drawings submitted by the defendant to the DOB. It clafms that Drawing A-2.00, tftled "East and West Efevations", clearly shows a new building being constructing that would extend onto Lot C. Plaintiff has also provided a copy of drawing A-1.01, tttled "CeHar Pfan First Floor Plan", which Indicates that lot C wfll contain "BAR/LOUNGE" and as "ACCESSORY TO HOTEL". It claims that all of these D~B plans are documentary evidence of the defendant's clear violation of the ZLDA which prohibits defendant from placing any porflon of a new building o.n Lots B or C. The defendant h~s provided the affidavit of Nicholas Zagami, the defend~mfs representative, who claims to be fully familiar with the scope and the day-t~-day construction activities at the site of construction. He states that he is on-site "virtually every day." Zagami maintains that the drawings provided by plaintiff should be -Page 3 ofe.. ... [* 4] • • ------·--··-···· disregarded by the court because they were made nearly three years ago and those plans have been "abandoned." Zagami states· that "none of the construction anticipated , or planned will be built 'on lot B or lot C' and none of the construction thus far will alter lot B and or lot C in a manner that would cause those Jots to extend beyond the respective height, setbacks or artfculatlons as those lots existed on April 2, 2008, the date on which the relevant agreement was executed." The defendant hfghlfghts the fact that plaintiff has failed to attach any photographs or eye witness accounts of the activity that allegedly violates the ZLDA. On a motion for a preliminary injunction, the movant must prove the likelihood of ultimate success on the merits, that It will suffer irreparable harm unless the relief is granted, and a balance of the equities In its favor (palne v. Chriscott y. Blair House Associates, 70 AD2d 571 [1st Dept 1979]; Aetna Insur. Co. v. Capasso, 75 NY2d 860 (1990]). The purpose of a prelimlnary injunction is to maintain the status quo and prevent the dissipation of property that could render a judgment Ineffectual (Moy v. Umeki. 10 AD3d 604 [2d Dept 2004D. 11Likelihood of successn need only be shown from the evidence presented: conclusive proof is not required (!Q). The granting of any . preliminary injunction requires the posting of security (CPLR § 6312 {b]). Here, a preliminary injunction is warranted. The defendant does not dispute the validity of the ZLDA. Nor does ft dispute that the ZLOA, concernfng the defendant's right to build on Lot B or c. provides that It "shall not alter the improvements located on Lot B and Lot C" In any manner that would cause those improvements "to extend beyond the respective heights, setbacks or articulations'' as they existett on AprU 2, 2008. The defendant dlspute the valfdity of the plans ~hat it submitted to the DOB and the fact that -Page4 of6- [* 5] I • • I •• • • ', these drawings Indicate that the defendant sought approval to build or construct beyond the dimensions of the improvements located on Lots B and C on April 2, 2006. , Rather, the defendant claims that it abandoned those pfans tong ago, and argues that because the plaintiff has not provided an affidavit from someone who "witnessed' the alleged construction activity, the motion should be denied. These arguments are unavallfng. Based upon the record before the court, plaintiff has met its thresfiofd burden. It has demonstrated a likelihood of success on the merits. Based upon the drawings submitted to the DOB by the defendant, such construction would appea.r to violate the ZLDA. Plalntiff has also demonstrated that the equities balance fn Its favor, especially in light of the fact that the defendant clafms It has no intention of violating the ZLDA vfs-a-vls Its construction activities concerning the hotel. Finally, although the defendant claims that plaintiff has not demonstrated irreparable harm, the court disagrees. The ZLDA specifically provided that a violation thereof could be redressed via injunctive relief. More importantly, the ZLOA indicates that the parties clearly Intended for plafntlff to transfer Its air rights to the defendant subject to certain bargained-for limitations, namely th~ prohibition on building on Lots B or C beyond the respective heights, setbacks or artlculatfons of the improvements located thereon as of April 2, 2008. Further, defendant's plans as submitted to the DOB would likely have a negative impact upon the marketability of the units in plaintiff's · building located on Lot A. Accordingly, plaintiff is entitled to the preliminary injunction sought. Although defendant has not asked for such relief, pursuant to CPLR 6312 (b), plaintiff is required -Page 5of6- --i· ... .. [* 6] ,. .. ' ' '• t9 post an undertaking prior to the granting of a preliminary injunction. Given the nature of the transactions at Issue in this case, and the financial positions of the parties. the , court hereby directs plaintiff to post a bond in the amount of $25,000. Conclusion In accordance herewith, it is hereby: ORDERED that pending the trial or other disposition of this action, the defendant, its agents, employees, contractors and other representatives are hereby • enjoined from engaging in any construction activities at or on Lot B or Lot C in violation of the ZLDA, fncluding any excavation, concrete pouring, utility installation, equipment operation, and delivery of supplies or other materials: and ft Is further ORDERED that platntiff is directed to post a bond fn the amount of $25, 000 that shall remain in place for the duration of the prellmfnary injunction: and it is further ORDERED that the parties are directed to appear for a preliminary conference on July 21, 2011 at 9:30 a.m. at 60 Centre Street in Part 1O. Any requested relief not expressly addressed has nonetheress been considered and is hereby denied. This constitutes the decision and order of the court. Dated: New York, New York June 3, 2011 So Ordered: Fl LED JUN 08 2011 NEW YORK COUNTY CLER~S OFFICE -Page 6 of6- ..

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