Plotch v Citimortgage, Inc.

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Plotch v Citimortgage, Inc. 2012 NY Slip Op 30694(U) March 13, 2012 Supreme Court, New York County Docket Number: 102708/11 Judge: Joan M. Kenney Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNED ON 312212012 [* 1] SUPREME COURT O F THE STATE O F NEW YORK NEW YORK COUNTY PRESENT: M. KENMEY Justice Notlce of MotionlOrder to Show Cause Answerlng Affldavlts / MOTION DATE -v- The following papem, numbered 1 to x PART +* 13, read on this motion t o l f ' o r ~ f l $ k 1 were - Affldavita - Exhlblb fl[ llbk I INo(a)(J - Exhibits INo(@. -/z f .?i I Ws). Replylng Affldavlta Upon the foregoing papers, It is ordered that this motion is MOTION IS DECIDED IN ACCORDANCE WiTH THE ATTACHED MEMBMNDUM DECISQN N E W YORK COUNTY CLERK'S OFFICE Dated: 5 I--. 4!+ I CHECK ONE: ..................................................................... . , J.S.C. V JOAN M. KENNCASE DISPOSED ........................... MOTION IS: GRANTED 3. CHECK IF APPROPRIATE: ................................................ [7 SETTLE ORDER 0DO NOT POST 2. CHECK AS APPROPRIATE: DENIED NON-FINAL DISPOSITION GRANTED IN PART OTHER 0SUBMIT ORDER FIDUCIARY APPOINTMENT [7 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PART : 8 -X ADAM PLOTCH, - - f f - - - - - - - - - _ _ _ - - - - - - - - - - - - - - - - - - - - - Index # 102708/11 Plaintiff, -againstCITIMORTGAGE, I N C . , DECISION & ORDER Defendant. _ l _ l _ _ _ _ _ _ _ - - - - - _ _ - - - - - - - - - - - - - - - - - - - -X HON. JOAN M. KENNEY, J.: Papera considered in review of this motion seeking, i n t e r alia, injunctive relief: Papers Numbered Affirmation, Affidavit and Exhibits, Memorandum of Law Opposition Papera, Affirmation OSC, Plaintiff'. Cou~raml: Einig & Bush LLP 4 2 0 Lexington Ave # 2320 New York, New York 10170 RoBicki, Rosicki & Assoc. PC 51 East aethpage Road Plainview, NY 11803 (516) 741-2585 MAR 222012 (212) 983-8866 plaintiff Adam 1-12 13 Plotch (Plotch), moves for an Order enjoining defendant Citimortgage Inc. (Citi or mortgagee) , from declaring him in default of the terms and conditions contained in the Terms of Sale (the contract), executed between the parties. The contract is dated December 8 , 2010,. The aecond branch of plaintiff's application also seeks an injunction1 to prevent any further sale, 1The application does not cite a specific section of the CPLR under which plaintiff moves, so the Court is treating it as a motion made pursuant to CPLR 6301 et s e q . . The judicial sale also sought to assign the proprietary lease (the lease) pertinent to the apartment at issue in accordance with the terms of the contract. [* 3] transfer, lease or offering of any interest in the cooperative shares attendant to Apartment 6B (the apartment), located at 236 East 28th Street, New York, New York. FACTUAL BACRrJR O W The following facta are undisputed. On December 8, 2010, the mortgagee, through a court appointed referee, attempted to auction the apartment. Plotch, a sophisticated investor who regularly attends foreclosure auctions, was apparently the succesaful bidder at this judicial sale. The hammer price for the shares was $221,000.00. As a result, P l o t c h executed the contract when he tendered 10% of the sale price ($21,100.00) on the day of the auction. The contract states in pertinent part as follows: 7. Subject to the terms and conditions of the Security Agreement, the Notice of Sale, Proprietary Lease, By-Laws of the Cooperative Board, Offering Plan and/or Prospectus, any and all provisions of the General Business Law of the State of New York governing cooperative associations, rights, of the cooperative board to reject the purchaser, or any other or future occupant of the apartment to be purchaaed hereunder, as tenant, and any tenants, occupants or persons in poasesaion. 9. Purchaser ahall within 72 hours of the sale herein contact the Cooperative Corporation to obtain the necessary approval for the purchase of the shares and proprietary lease. Purchaser shall submit application within 7 days of receipt of the application. Purchaser shall pay all fees charges in connection with such application, and, at the closing, pay the processing fee, if any, charges by the managing agent for its -2- [* 4] services in connection with the sale and the transfer of the sharea of stock and the Proprietary Lease and all expenses of transfer after this sale, including, but not limited to Real Property Transfer Tax, Flip tax and Transfer Stamps, if any, the legal fee of the corporation's attorney and the legal fee for the secured party's attorneys for the transfer in the amount of $ 8 0 0 . 0 0 . In essence, the lease states that in the event the mortgagee of any shareholder is declared to be in default, and the shares sold at auction, the managing agent of the cooperative, rather than the board of directors, has the right to "approve" or "disapprove" the successful bidder. In this case the managing agent merely has to "consent" to the sale to the successful bidder, and said "consent shall not be unreaaonabie withheld or delayed." (Section 17(b) of the proprietary lease). According to Citi's attorney, in order to obtain the consent of the managing agent, Plotch was required to submit a financial disclosure "package" to the managing agent. Pursuant to the custom in the trade, such a financial package includes without limitation, an application providing pedigree information, several years of tax returns, all bank statements, several references and credit report(s). personal/profeasional It is uncontested that Plotch never submitted a package to the managing agent for it review. Plotch attaches several emails between himself and the cooperative's attorney and managing agent to support his position -3- [* 5] that he complied with the terms of paragraph 9 of the contract. However, Plotch does not provide any indication that he attempted to submit an application or financial package to the managing agent for the requisite approval. PXSCUSSLON CPLR 6301 sets forth the grounds for preliminary injunction and temporary restraining order: A preliminary injunction may be granted in any action 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. , temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is reatrained before the hearing can be had. A A party moving for a preliminary injunction must demonstrate by clear and convincing evidence (W.T. Grant Co. v S r o g i , 52 ~ Y 2 d 496 C19811) , that it can establish, (1) a likelihood of aucceas on the merits of the underlying claim; (2) the prospect of irreparable injury if the provisional relief is withheld; and ( 3 ) a balance of -4- [* 6] the equities tipping in its favor (see Nobu N e x t Door, LLC v Fine Arts Hous. , Inc. , 4 NY3d 839, 840 [2005]; Olympic Tower Condominium v Cocoziello, 3 0 6 AD2d 159 [lat Dept 20031 , citing, Doe v Axelrod, 73 NY2d 7 4 8 , 7 5 0 [1988]). This Court finds that Plotch has failed to satisfy t h e three-pronged test for the granting of a preliminary injunction nor has he met his burden of p r o o f . Notably, Plotch has been unable to show that irreparable harm is \imminent,not remote or speculative omitted) . (citations Moreover, \ [e]conomic loss, which is compensable by money damages, does not constitute irreparable harm (citations omitted). The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court (Family-Friendly Media, Inc. v Recorder Television Network, 738 74 AD3d [2nd Dept 20101). Plotch s complaint pleads a single cause of action, specific performance. Plotch demands that Citi be d i r e c t e d to sell the shares pursuant to a strict interpretation of the contract. \ [A] mandatory preliminary injunction (one mandating specific conduct) by which the movant would receive some form of the ultimate relief sought as a final judgment, is granted only in unusual situations, where the granting of the relief is essential to maintain the status quo pending trial of the action (citations omitted) (Jones v Park Front Apartments, LLC, 20101). 73 AD3d 6 1 2 [lmt Dept Plotch does not indicate in any way that he has complied -5- [* 7] with the terma of the contract, and is in fact in default for having failed to complete his application f o r the managing agent's approval within the seven days he was required to do BO, breaching a material term of the contract at issue. In order to thereby establish a prima facie case on a breach of contract claim, defendant must show proof of a contract, performance by one party on the contract, a breach by the other party and damages as a result (Flomenbaum v N e w York Univ., - AD3d -, 08975 [lst Dept 20091). 2009 NY Slip Op Plotch has not s e t forth any proof that Citi has failed to perform itls obligations under the contract. Where the plain language of the contract establishes obligations on the other party that have not been met, [dismissal] is warranted (Bartfield v RMTS Aasocs., LLC, 283 AD2d 240 [lst Dept 20011). For the reasons set forth above the motion is denied in its entirety. Accordingly, it is ORDERED that the motion is denied. Dated: March 13, 2012 E N T E R : HqnJJoan -6- MAR 22 2012 M. Kenney

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