1286 RR Operating, Inc. v Herald Towers, LLC

Annotate this Case

Download PDF

1286 RR Operating, Inc. v Herald Towers, LLC 2011 NY Slip Op 32552(U) September 23, 2011 Supreme Court, New York County Docket Number: 109979/11 Judge: Lucy Billings 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY LUCY CILIJNGS J.S.c- PRESENT: PART 46 Justice "J MOTION DATE -vMOTION 8EQ. NO. ! MOTION CAL. NO. The following papers, numbered 1 to 3 were read on this motion ld /for A. * ? +& / M f W Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... Answering Affidavits - Exhiblts Replying Affidavits 0 Yes Cross-Motion: ~ N O SEP 27 2011 J.S.C. Check one: c FINAL DISPOSITION ] Check if appropriate: r] DO NOT POST 0 SUBMIT ORDER/ JUDG. .- . . .. .. . . NON-FINAL DISPOSITION c REFERENCE ] SETTLE ORDER/ JUDG. m [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY O F NEW YORK: PART 46 1286 RR OPERATING, INC., Index No. 109979/2011 Plaintiff - againat - gECISION AND ORDER FILED HERALD TOWERS, LLC, Defendant LUCY BILLINGS, J.S.C.: NEW YORK COUNTY CLERK'S OFFICE The c o u r t converta the temporary restraining order dated August 30, 2011, in part, to a preliminary injunction pending t h e determination of this action or until a further order. C.P.L.R. 5 5 6301, 6311(1) , 6312(a) ; S e c ~ n don S e c ~ d fe, Inc. v. Hinq Ca Sins Tradinq, I n c . , 66 A.D.3d 2 5 5 , 2 7 1 - 7 2 (1st Dep't 2 0 0 9 ) ; CIraSure Tech., Inc. v. Prestiqe Brands Holdinqs, I n c . , 4 0 A . D . 3 d 413, 414 (1st Dep't 2 0 0 7 ) ; FTI Consultinq, Inc. v. PricewaterhouaeCoopers LLP, putter v. Sinqey, 8 A.D.3d 145, 146 (1st Dep't 2004); 7 3 A.D.3d 1147, 1149 (2d Dep't 2010). T h e preliminary injunction shall prohibit defendant, its managers, members, employees, servants, agents, attorneys, affiliates, and p a r t n e r s , and all other persons acting on behalf of or in concert with defendant from: (1) Elhutting down the duct work, exhaust stack, or cooking ventilation system servicing the premises previously leased to plaintiff at 1286 Broadway, New York County, or (2) removing plaintiff's exterior signage or sidewalk canopy 1286rr.135 1 [* 3] at the premises. The preliminary injunction shall expire if by October 7, 2011, at 5 : O O p.m., plaintiff has failed to provide an undertaking or other security of $150,000 in favor of defendant. This amount reflects a potential loss to defendant, from the ,injunction, of eight months' rent at a market r a t e above the rate plaintiff is paying, accounting for time to re-rent and defendant's preserved claim for plaintiff's continued uae and occupancy at market rates in the summary eviction proceeding that defendant haa commenced against plaintiff. C.P.L.R. 5 6312(b). The injunction is further conditioned on plaintiff's payment for uae and occupancy at the rate and times specified in the parties' leaBe that expired June 30, 2011. Plaintiff has shown that defendant has threatened the measures specified above immediately, which would poee a danger of irreparable injury to t h e health and safety of plaintiff's employees and customers and building occupants; halt plaintiff's busineaa; indicate it is closed; and cauae irreparable l o s s of good will and injury to plaintiff's relationships with its franchiser and customers. On the other hand, plaintiff has not , shown that defendant has threatened or is about to engage in any other extra-judicial conduct at the premises affecting plaintiff's occupancy there. The more limited injunction is enough to protect against any immediate and irreparable injury to plaintiff or to other persona, health and safety. C . P . L . R . 55 6301, 6312(a) ; Waldbaum, Inc. v. Fifth Ave. of Lonq Is. ea ltv 1286rr.135 2 [* 4] Secsnd Qn Second Ca fe, I n c . P S S Q ce,, 8 5 N.Y.2d 600, 6 0 7 (1995); v. Hinq Sinq TZadiaq, Inc., 6 6 A.D.3d at 2 7 1 - 7 2 ; O r a S u r e Tech. , Inc. v. Prestiqe Brands H o l d u q s , Inc,, 40 A.D.3d at 414; GPnsubtinq, Inc. v. Py icewaterhause O O P ~ ~ LP, 8 A.D.3d at 146. C JI P m pl,ltter v. Sinqer, 73 A.D.3d at 1149. Therefore t h e court lifts the temporary injunction,,a8 an unnecessary restraint, againBt other conduct. Plaintiff aleo haa shown an entitlement to defend its claimed right to continued possession of the premises in t h e lsummary eviction proceeding that defendant notified plaintiff defendant would commence and now has commenced, without resort to self-help measures, posing a danger to health and safety, to achieve the eviction. Defendant has not demonstrated that the limited injunction will impoee undue hardship, Waldbaum, Inc. v, Fifth Ave. of Lonq Is. Rea ItY ARSQC s . , 8 5 N.Y.2d at 607; Second m Secsnd r a f e , m c . v. Hinq Sinq Trad ins, Inc,, 66 A.D.3d at 273; drastically upset the statue 9u0 , gutter v. Sinqex, 7 3 A.D.3d at 1149; or materially interfere with defendant's pursuit of its claim for posseasion of the premises in the summary eviction proceeding where defendant has elected to pureue its claim, including recovery for plaintiffla continued occupancy at market rate. Waldbaum, I w . la. Rea ltv A B S O C ~ . , 5 N.Y.2d at 8 607; y. uBe and Fifth Ave. of Lonq Second on Second Cafe, IIW. v. Hinq $ins Tradinq, I n c . , 66 A.D.3d a t 273. Defendant has made no recent complaints regarding odors from plaintiff's use of the duct work, exhaust stack, or cooking ventilation system servicing 1286rr.135 3 [* 5] the premises or regarding other danger or nuisance from that use or from plaintiff's exterior signage or sidewalk canopy at the premises. Consequently, the court grants plaintiff's motion f o r a preliminary injunction to the extent set forth above. 8 8 6301, 6311(1), 6312(a). order. C.P.L.R Thie decision conetitutes the cour :' s The c o u r t will provide copies to the partiee' attorneys. FILED DATED: September 23, 2011 SEP 27 2011 .. . . . LUCY 1286rr.135 4 BILLINGJF~~W. P Y I K ~ OFFICE

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.