Peyton v PWV Acquisition LLC
Annotate this CaseDecided on May 20, 2013
Supreme Court, New York County
Maggi Peyton, in her capacity as President of the Park West Village Tenants' Association and individually, et al., Plaintiffs,
against
PWV Acquisition LLC, PWV OWNER LLC, and JEWISH HOME LIFECARE, MANHATTAN, Defendants.
111379/11
For Plaintiffs:
Catherine A. Grad, Esq.
Grad & Weinraub, LLP
212-732-0400
For defendants:
Deborah E. Riegel, Esq.
Rosenberg & Estis
212-867-6000
Anil C. Singh, J.
At issue in this case is whether the plaintiffs, who are rent-regulated tenants of Park West Village whose lease riders give them assigned parking spots in outdoor parking lots, have shown irreparable injury so as to permanently enjoin defendants from unilaterally terminating plaintiffs' parking lease riders, or taking any steps to eliminate, cancel, or relocate plaintiffs' parking spaces or motor vehicles, unless and until such actions are authorized by a duly issued order of the Division of Housing and Community Renewal ("DHCR").
I hold that the tenants are entitled to a permanent injunction.
Defendants oppose the motion and cross-move for an order pursuant to CPLR 3126: a) striking the complaint and dismissing the action; b) determining that there is no irreparable harm; c) precluding any evidence that plaintiffs have submitted in their summary judgment motion concerning the alleged irreparable harm; d) denying the summary judgment motion and precluding plaintiffs from filing any such motion until after the Note of Issue is filed; and e) sanctions for plaintiffs' willful disobedience of discovery orders.
In addition, defendants move by order to show cause to modify the preliminary injunction order so as to permit defendants to relocate plaintiffs' parking spaces to a new outdoor parking lot [*2]in conformity with three orders dated January 17, 2013 issued by a DHCR rent administrator.[FN1]
On July 21, 2011, plaintiffs received notices from their landlord, defendant PWV Acquisition LLC ("PWV"), stating that the parking lots were being eliminated. Plaintiffs were instructed that, from then on, they would have to keep their cars at an underground garage nearby.
On September 26, 2011, PWV advised the tenants that the landlord had a legal right to change assigned parking spaces under the lease riders. Plaintiffs disagreed and refused to surrender their spaces.
PWV seeks possession of the parking lot as part of a real estate transaction with defendant Jewish Home Lifecare ("Jewish Home"). Under the deal, the parking lot will be conveyed to Jewish Home, and a new nursing home and elder care center will be constructed on the lot. In exchange, Jewish Home will transfer its property located on 106th Street to defendant PWV Owner LLC ("PWV Owner"). PWV Owner intends to construct a high-rise residential building on the property.
Plaintiffs commenced this action seeking declaratory and injunctive relief against their landlord, and moved for a preliminary injunction to enjoin the landlord from terminating their parking lease riders and right to park in their current spaces or to eliminate or relocate the parking spaces to an underground parking garage.
On April 5, 2012, this Court issued a preliminary injunction and directed plaintiffs to post a bond in the sum of $75,000 as an undertaking for preliminary injunctive relief (Peyton v. PWV Acquisition LLC, 35 Misc 3d 1207(A), 2012 WL 1130202 [Sup. Ct., NY Cty., 2012] (Singh, J.)).
Defendants appealed the amount of the bond. They did not, however, challenge the preliminary injunction.
The First Department unanimously affirmed (Peyton v. PWV Acquisition LLC, 101 AD3d 446 [1st Dept., 2012]). The Court wrote:
The evidence demonstrated that defendants attempted to modify or substitute an ancillary parking service to which plaintiffs were entitled, without requisite approval from the Division of Housing and Community Renewal (DHCR). The landlord defendants (PWV defendants) nonetheless entered into a contract to sell the subject open-air parking lot for development purposes to defendant Jewish Home Lifecare, Manhattan, prior to obtaining the requisite approval from the DHCR. In light of the foregoing, and the standard delays that were shown to be attendant to applications by defendants for regulatory approval of proposed building construction, the $75,000 undertaking required by the court, pending final resolution of plaintiffs' action for declaratory and injunctive relief, was rationally related to defendants' potential damages should the preliminary injunction later prove to have been unwarranted.
(Id.) (internal citation omitted).
The question now before the Court is whether the injunction should be made permanent.
"Although the issuance of a preliminary injunction involves an exercise of the court's discretion, the court has no discretion to grant a permanent injunction when the facts conclusively show that it would be inequitable and unjust" (67A NY Jur.2d Injunctions section [*3]6).
"The purpose of a preliminary injunction is to preserve the status quo until a decision is reached on the merits" (Icy Splash Food & Beverage, Inc. v. Henckel, 14 AD3d 595, 596 [2d Dept., 2005]). "A permanent injunction is a drastic remedy which may be granted only where the plaintiff demonstrates that it will suffer irreparable harm absent the injunction" (67A NY Jur.2d Injunctions section 169). Accordingly, a permanent injunction should be granted only in a clear case, reasonably free from doubt (Standard Realty Associates, Inc. v. Chelsea Gardens Corp., 2013 WL 1458869 [1st Dept., 2013]).
"To be entitled to a permanent injunction, plaintiff [is] required to establish not only irreparable harm, but also the absence of an adequate legal remedy" (McDermott v. City of Albany, 309 AD2d 1004, 1005 [3d Dept., 2003]).
"Irreparable injury, for purposes of equity, has been held to mean any injury for which money damages are insufficient" (L & M Franklyn Avenue, LLC v. S. Land Development, LLC, 98 AD3d 721, 722 [2d Dept., 2012] (internal quotation marks omitted)). In other words, an injury is irreparable when "there is no certain pecuniary standard for the measurement of damages" (67A NY Jur.2d Injunctions section 18).
Case law reflects that, in general, an injury is considered to be irreparable if the harm in question cannot be undone. Such an interpretation is consistent with the definition of the word "irreparable," which means, "Impossible to repair, rectify, or amend" (American Heritage Dictionary of the English Language 954 [3d ed 1992]).
For example, in Gramercy Co. v. Benenson, 223 AD2d 497 [1st Dept., 1996], actions were brought against trustees of a park to contest trustees' actions with regard to trees in the park. The trial court granted preliminary injunctions preventing the trustees from cutting down or pruning any trees without first obtaining a written recommendation from a certified arborist. The First Department affirmed, holding that a potential for irreparable harm existed because "[d]enial of injunctive relief would render the final judgment ineffectual, since the trees, once cut down, cannot be replaced...." (Gramercy, 223 AD2d at 498).
In State of New York v. City of New York, 275 AD2d 740 [2d Dept., 2000], the Second Department affirmed the trial court's issuance of a preliminary injunction to enjoin the City of New York from selling lots. The Court wrote, "The State has demonstrated that the imminent sale of the community gardens will result in irreparable harm" (Id.).
Likewise, if the parking lots at issue in the present case were replaced by new construction, there is no way the building would be torn down so tenants could have their parking lots back. Once the parking lots are gone, they are clearly gone for good.
"Generally speaking, it is the condition of things at the time of the hearing of the action, rather than that existing at its commencement, which is material, and which furnishes the basis for permanent injunctive relief" (67 NY Jur.2d Injunctions section 45). Accordingly, the Court must consider the sworn affidavits annexed to the moving papers to determine the situation as it exists at this time.
Plaintiffs exhibit the sworn affidavits of sixty-four (64) tenants in support of the instant motion.
Plaintiff Maggi Peyton has submitted a sworn affidavit for herself individually as a tenant, as well as in her capacity as President of the Park West Village Tenants' Association. [*4]According to Ms. Peyton, she has had the same designated parking space in the 97th Street parking lot since around 1970, and she signed a parking space lease rider in 1972 for her present space. She states that she is a senior citizen; that she relies on having parking so near to her residence; and that it is an "essential use and enjoyment" of her apartment. Further, she states that the parking spaces are essentially right outside the door from the buildings where plaintiffs reside; that they are in an open, well-lighted area; that plaintiffs would not be able to find substitute parking that would provide the same benefits as their current parking; and that neither a rent reduction nor money damages could compensate them for the loss of the parking, which is "unique and irreplaceable."
Theodore Abramov states in a sworn affidavit that he has two designated parking spaces in aboveground lots. Mr. Abramov contends that relocating to the underground garage would impair his ability to access his cars and property that he leaves in his cars because he would no longer have direct access to the vehicles. Rather, he would have to wait for the parking attendant to deliver the cars to him. Abramov is concerned that it would put the cars at greater risk of damage because parking attendants have control over the cars, parking of the cars, and driving the cars. He contends that the move would also put him and his wife "at risk" because going to the underground garage "is not as safe" as going to his present parking space. Finally, Abramov asserts that he would incur the additional cost of being required or expected to tip the parking attendants, and he believes that his relocation of his parking space would put his right to parking as an ancillary service of his rent-stabilized tenancy at risk.
Mary Lee Baranger states in a sworn affidavit that she is 82 years old. Ms. Baranger is "concerned" because the garage is operated by an entity — "Quik Park" — which is not her landlord. According to Baranger, the landlord has never explained the arrangement between the landlord and Quik Park; however, she understands that she may have nothing more than monthly permission from Quik Park to park her car in the garage if she surrenders her aboveground parking space in the lot. Further, she does not know whether or how she could enforce her rent-stabilized right to continue parking against Quik Park, if Quik Park were to refuse to allow her to park in the garage in the future.
Ms. Baranger asserts that the garage would represent a "decline in the level of parking services" that the tenants have with their designated outdoor spaces. She states that she has been in the garage. The door to the elevator and stairwell is unlocked, and there are no security personnel. The arcade is often deserted at night. She describes the garage as a bit of a labyrinth, with a room leading to an enclosed passageway which makes two turns and eventually leads into the garage area. Baranger contends that there is no security or other garage personnel in the downstairs elevator room or the passageway to the garage area, and this area is outside the view of the garage attendant booth. She feels that it would be "a frightening walk to make, especially late at night, especially alone."
Ms. Baranger contends that she has learned that the elevator is "often out of service." She states that, at the age of 82, she does not want to have to walk on the ramp used by cars — especially in bad weather — and is concerned that, before long, she will have difficulty walking up and down the stairs to the garage.
Ms. Baranger states that her present parking space is directly adjacent to the building where she lives, so her car is always available and accessible. She contends that, "at my age, this [*5]is important to me; and it will become more important in the future."
Finally, she notes that, as tenants have vacated spaces in the aboveground lots, the landlord has installed large cement blocks on the parking space, to stop anyone else from using the space. She points out that landlord intends to eliminate both lots, and there are plans to construct a building on the 97th Street lot. Baranger contends that if she is forced to move her car from her designated parking space, defendants will take steps to eliminate the space so that she can never return to it.
Wynona Blackman states in a sworn affidavit that she is a single woman and a "senior citizen" and that she is worried about the safety of getting to and from her car if she must use the garage.
Diana Correa states in a sworn affidavit that relocation of her parking space would make it more difficult to access her car because the garage is farther away from her building entrance than her present parking space. Further, she contends that her husband is a doctor who uses the car frequently during the day for work and emergencies related to work. According to Correa, relocation of the parking space would make it more difficult to access the car quickly and on an emergency basis.
Amir Darvish states in a sworn affidavit that he had an accident, resulting in an injury to his leg, which makes it difficult for him to walk. According to Darvish, he cannot walk up and down stairs or a sharp incline without pain and difficulty.
Christine Dreyfus states in a sworn affidavit that it will be more difficult to walk to her car, especially in bad weather, and more difficult to carry things to and from the car. In addition, she asserts that relocation of tenants' parking spaces would cause more traffic congestion in the front of her apartment building, since more people will need to drop passengers or personal items at the front door before driving to the underground garage to park.
Walter Durels states in a sworn affidavit that the garage is farther from his building entrance than his present parking space. He states that the extra distance is particularly a problem for him now, because he has injuries from a car accident in 2012.
Saralee Edwards states in a sworn affidavit that the garage is farther away than her present parking space. She states that, because of "problems with my knees," the additional walking or the use of stairs or ramps would be difficult and painful.
The above affidavits are a sample of the dozens of sworn affidavits that are annexed to the motion from affected tenants. The Court has carefully reviewed all 64 affidavits, which state similar facts and voice similar concerns. They are simply variations on a theme.
After careful consideration, the Court finds that the sworn affidavits make out a prima facie case that plaintiffs will suffer an irreparable injury and that there is no adequate legal remedy. The affidavits reflect, among other things, that some of the plaintiffs are senior citizens or individuals with injuries or disabilities who might have trouble negotiating ramps and stairs in the garage when elevators are out of service; that the garage would be more inconvenient than the outdoor lots; and that plaintiffs feel relatively safe in the open-air parking lots but fearful of crime in the subterranean garage. Moreover, there is no question that the outdoor parking spaces cannot be replaced if the contemplated building is constructed before DHCR issues any decision.
In response, defendants exhibit four sworn affidavits.
Three of the affidavits are from tenants who surrendered their parking spaces in the [*6]aboveground lots and relocated their parking spaces to an underground garage voluntarily.
Dinnel Spencer, Raquel Servones, and Jerome Vanputten state in sworn affidavits that the relocation was "seamless" and did not impose any "burdens" on them. They contend that parking in the garage offers more security and comfort than parking their cars in the "unsecured, outdoor, unprotected lot." According to Spencer, Servones, and Vanputten, the garage is a convenient and safe place to park their cars; the garage attendants retrieve cars efficiently; and they can think of no reason that anyone would not feel safe in the garage, elevator, stairwell and arcade areas. They cannot recall any time when the elevator was out of service. Even if it was, they assert that the garage would be easily accessible via the stairwell and/or ramp.
In addition, defendants exhibit the sworn affidavit of Jeffrey Davis, who states that he is a property manager for Columbus Square Management. Mr. Davis asserts that facts essential to justify opposition exist, but cannot be stated "given plaintiffs' withholding of evidence in violation of the Court's orders."
According to Davis, the elevator has been out of service "about five (5) times" within the last two years. He contends that the distance from plaintiffs' apartment buildings to the elevator is 300 feet from the 788 Columbus Avenue building, 392 feet from the 792 Columbus Avenue building, and 470 feet from the 784 Columbus Avenue building. Davis asserts that currently some plaintiffs have to walk farther — specifically, 500 feet — to their parking spaces. Finally, he states that the garage is securely manned by staff at all times; that the elevator, stairwell and arcade are well-lit and monitored by security cameras; that he is not aware of any safety problems with the garage, elevator, stairwell or arcade; and that there have been no reported incidents in those areas.
In short, the Court finds that the sworn affidavits of Spencer, Servones, Vanputten, and Davis are inadequate to demonstrate the existence of a genuine issue of material fact regarding the issue of irreparable harm or the absence of an adequate legal remedy.
Where, as here, the issues regarding injunctive relief are not complex, the issues can be finally resolved on the basis of the papers submitted (Weissman v. Kubasek, 112 AD2d 1086 [2d Dept., 1985]). On the record before this Court, the plaintiffs have clearly satisfied the high threshold required to obtain the extraordinary relief of a permanent injunction. Defendants' alleged need for additional discovery is an insufficient basis to deny summary judgment (Gutarts v. Fox, 104 AD3d 457, 458 [1st Dept., 2013]). Depositions of the named plaintiffs will not change the result because at its core the irreparable injury in this case is the defendants attempt to change the character of plaintiffs' ancillary parking service without first obtaining administrative approval. Defendants have sought DHCR approval only after entering into a contract to sell open-air lots for development and in response to plaintiffs' lawsuit seeking injunctive relief. Denial of a permanent injunction would render a final judgment in favor of plaintiffs ineffectual.
Section 2520.6(r)(3) of the Rent Stabilization Code defines ancillary services as "... [t]hat space and those required services not contained within the individual housing accommodations, which the owner was providing on the applicable base dates ... and any additional space and services provided or required to be provided thereafter by applicable law. These may include, but are not limited to, garage facilities ..." (see also, 110-15 71st Road Associates, LLC v. Division of Housing and Community Renewal, 54 AD3d 679, 681 [2d Dept., 2008]).
Where a parking facility is provided by a landlord as an ancillary service to rent-regulated [*7]tenants, the landlord is prohibited by law from discontinuing it or modifying it without prior approval from DHCR (RSC section 2522.4[d], 2522.4[e]).
Here, the landlord could have gone to DHCR before sending notices out to tenants. By failing to take that route, the landlord is putting the tenants at risk of losing their right to the aboveground ancillary parking service. The issuance of a permanent injunction is necessary to protect the tenants from losing their valuable property right without due process of law.
Accordingly, it is
ORDERED that plaintiffs' motion for summary judgment (seq. 002) is granted, and defendants' cross-motion is denied; and it is further
ORDERED that the defendants, their agents, servants, employees, representatives, attorneys and all persons acting on their behalf, are enjoined from taking any of the following actions until and unless such actions are authorized by a duly issued order of the Division of Housing and Community Renewal:
a) terminating any of plaintiffs' parking space lease riders or other parking leases or parking agreements or parking rights relating to the parking spaces currently used by plaintiffs, which spaces are located on outdoor parking lots on the grounds of the Park West Village residential complex in the area bounded by Columbia and Amsterdam Avenues and West 97th and West 100th Streets, or
b) taking any steps to otherwise eliminate or cancel or relocate any of the plaintiffs' parking spaces or motor vehicles, as referred to above; and it is further
ADJUDGED AND DECLARED that none of the plaintiffs are in violation of their parking leases or parking agreements for refusing to surrender their parking spaces and/or relocate their parking spaces to the underground garage at 808 Columbus Avenue, as demanded in the notices dated July 21, 2011, and September 26, 2011, and any similar notices to any plaintiff; and it is further
ORDERED that defendants' motion by order to show cause to modify the preliminary injunction order (seq. 003) is denied as moot based on the issuance of the permanent injunction.
Date:May 20, 2013______________________________
New York, New YorkAnil C. Singh
Footnotes
Footnote 1:Motion sequence 002 and 003 are consolidated for disposition.
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