Levkoff v Soho Grand-West Broadway, Inc.

Levkoff v Soho Grand-West Broadway, Inc. 2014 NY Slip Op 01695 Decided on March 18, 2014 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 March 18, 2014
Mazzarelli, J.P., Sweeny, Andrias, DeGrasse, Richter, JJ.
11985 153719/12

[*1]Lizabeth Levkoff, etc., Plaintiff, 349 Holdings, Inc., Plaintiff-Appellant,

v

Soho Grand-West Broadway, Inc., Defendant-Respondent.




Vernon & Ginsburg, LLP, New York (Darryl M. Vernon of
counsel) for appellant.
Cantor, Epstein & Mazzola, LLP, New York (Brett L. Carrick
of counsel), for respondent.

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered August 26, 2013, which, insofar as appealed from as limited by the briefs, denied plaintiff 349 Holdings, Inc.'s motion for a preliminary injunction, unanimously affirmed, without costs.

Contrary to plaintiff's contention, its request to stay the foreclosure and auction of one of its shares in defendant cooperative is governed by the standard for preliminary injunctions, and not the more lenient standard for a Yellowstone injunction. Accordingly, plaintiff had to "demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor" (Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]), which it failed to do. As the motion court determined, plaintiff did not demonstrate a likelihood of success on the merits.

Plaintiff violated the so-ordered June 15, 2012 stipulation, requiring it to obtain defendant's permission to sublet its non-rent-regulated apartments before — not after — entering into a sublease. The stipulation did not have to specifically provide for the remedy of foreclosure.

Contrary to plaintiff's argument, the doctrine of unclean hands is inapplicable and does not warrant granting a preliminary injunction. Defendant's conduct was not immoral and unconscionable and plaintiff was arguably not injured by it since the motion court invalidated the complained-of resolution passed by defendant in violation of the stipulation (National Distillers & Chem. Corp. v Seyopp Corp., 17 NY2d 12, 15 [1966]). [*2]

We have considered plaintiff's remaining arguments and find that they were either improperly raised for the first time on appeal or are unavailing.

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

ENTERED: MARCH 18, 2014

CLERK