Step One Underground Prods. Ltd. v 150 RFT Varick, Inc.
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Step One Underground Prods. Ltd. v 150 RFT Varick, Inc. 2016 NY Slip Op 32230(U) October 25, 2016 Supreme Court, New York County Docket Number: 161633/2014 Judge: Joan M. Kenney 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] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PART 8 --------------------------------------x STEP ONE UNDERGROUND PRODUCTIONS LIMITED and RICARDO REGISFORD, Index # 161633/2014 Plaintiffs, -against- Decision & Order 150 RFT VARICK, INC. and 150 ENTERTAINMENT GROUP, LLC, 150 RFT VARICK BASEMENT, Defendants. --------------------------------------x KENNEY, JOAN, M., J.S.C. For Plaintiff: John Jekielek, Esq. 153 West 27ru Street, Suite 204 New York, NY 10001 For Defendants: Monte Albers DeLeon LLC 31 West 34~ Street, Suite 7093 New York, NY 10001 Papers considered in review of these motion(s) a preliminary injunction: Papers Numbered Order To Show Cause, Affidavits, Affirmation, Exhibits and Memorandum of Law Affirmation and Affidavit in Opposition, Exhibits and Memorandum of Law 1-8 9-15 Factual Background Plaintiffs, Step One Underground Productions LTD and Ricardo Regisford (collectively plaintiff) move by Order To Show Cause 1 for an Order enjoining defendants from selling, transferring or disposing of certain audio/sound/light equipment that is allegedly owned by plaintiff. Entertainment Group, Defendants, LLC, 150 RFT Varick, 150 RFT Varick Basement, Inc. and 150 (collectively defendants), were allegedly the owners/operators of a now defunct 1 Plaintiff served a bare summons with notice and has not apparently served an actual complaint. 2 of 6 [* 2] nightclub called the Greenhouse. Plaintiff contract, are to in its' summons with conversion and specific performance, return Plaintiff artist alleges the states and disc equipment that he jockey is (DJ) owners" of its predecessor, allegedly a the to musician, Greenhouse Club Shelter. breach of in that defendants belonging professional at notice: and plaintiff. recording "one of Plaintiff states, the in essence, that during the course of his professional affiliation with both clubs he provided the equipment necessary to set himself up as the DJ in the clubs. Plaintiffs' recitation of the facts seems to imply a bailment between the parties, it is unclear from the papers before the Court. Defendants state that plaintiff's allegations are completely false; but incredulous because when the Greenhouse was shutting down its operation, plaintiff removed not only anything that allegedly belonged to him, but video equipment that clearly did not belong to, nor was it necessary for, plaintiff's DJ operation. Plaintiff attempts to support the conversion claim with copies of paid invoices and a cancelled check, from a third party who sells and repairs the kind of equipment plaintiff claims was removed from the Greenhouse without his consent. Defendants contend that plaintiff informed a building employee that six pieces of equipment belonged to plaintiff. According to defendants plaintiff was given ample opportunity to retrieve his equipment from the club prior to defendants's sale of the entire 2 3 of 6 [* 3] clubs audi/visual equipment to a third party. alleged to be approximately $73,200.00. The sale price was In the event plaintiff could prevail on the entire claim, the total amount of damages would be approximately $26,400.00, in light of the documents submitted in support of the motion. Discussion 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. A 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 restrained before the hearing can be had. A party moving for a preliminary injunction must demonstrate by clear and convincing evidence a right to the remedy sought Grant Co. v Srogi, must establish, (1) underlying claim; 52 NY2d 496 [1981]). Furthermore, (W.T. that party a likelihood of success on the merits of the (2) the prospect of irreparable injury if the 3 4 of 6 [* 4] provisional relief is withheld; and (3) a balance of the equities tipping in its favor (see Nobu Next Door, LLC v Fine Arts Hous., Inc., 840 4 NY3d 839, [2005]; Olympic Tower Condominium v Cocoziello, 306 AD2d 159 [1st Dept 2003], citing, Doe v Axelrod, 73 NY2d 748, 750 [1988]). This Court finds that plaintiff has failed to satisfy the three-pronged test for the granting of a preliminary injunction nor has plaintiff met its burden of proof. Notably, plaintiff has been unable to show that the irreparable harm is 'imminent, not remote or speculative' (citations omitted). Moreover, is compensable by money damages, harm' '[e]conomic loss, which does not constitute irreparable (citations omitted). The decision to grant or deny provisional relief , is ordinarily Supreme Court Network, committed to the (Family-Friendly Media, 74 AD3d 738 [2nd Dept 2010]). sound Inc. discretion of the v Recorder Television However, the function of a provisional remedy is "not to determine the ultimate rights of the parties, but to maintain the status quo until there can be a full hearing on the merits" (Residential Ed. of Mgrs. of Columbia Condominium v Alden, 178 AD2d 121, 122 [1991]). Further, the issuance of a mandatory injunction is appropriate only when such extraordinary relief is essential to maintaining the status quo (id.). "[W]here conflicting affidavits raise sharp issues of fact," injunctive relief should not be granted (id. at 123). also, Lehey v Goldburt, 90 AD3d 410 (1st Dept 2011). 4 5 of 6 See Consequently, [* 5] plaintiff's motion is denied. Accordingly, it is ORDERED that plaintiffs' motion is denied and the temporary restraining order is vacated, and it is further ORDERED that plaintiffs serve a complaint within 20 days hereof, and it is further ORDERED that defendants serve a responsive pleading within 30 days of service of the complaint, and it is further ORDERED that all disposi ti ve motions are referred to the Special Referee to be appointed, and it is further ORDERED that the issue of determining what, if any amount, of money, is owed to either party is referred to a Special Referee to hear and report with recommendations, except that, in the event of and upon the filing of a stipulation of the parties, as permitted by CPLR 4317, the Special Referee, or another person designated by the parties to serve as referee, shall determine the aforesaid issue; and it is further ORDERED that a copy of this order with notice of entry shall be served on the Clerk of the Judicial Support Office (Room 311) arrange a date for the reference to a Special Referee. Dated: October 25, 2016 E N T E R: {0/01 IP,QJ{,, . ~ Kenney JOAN M. KENNEY J.S.C. 5 6 of 6 to
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