Board of Mgrs. of the Echelon Condominium v Jackson Ave. Realty LLC

[*1] Board of Mgrs. of the Echelon Condominium v Jackson Ave. Realty LLC 2014 NY Slip Op 51276(U) Decided on August 18, 2014 Supreme Court, Queens County McDonald, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 18, 2014
Supreme Court, Queens County

The Board of Managers of the Echelon Condominium, on behalf of the unit owners, Plaintiff,

against

Jackson Avenue Realty LLC, Defendants.



6476/2014
Robert J. McDonald, J.

The following papers numbered 1 to 14 were read on this motion by the plaintiff, THE BOARD OF MANAGERS OF THE ECHELON CONDOMINIUM, for an order pursuant to CPLR 6301 and 6311 granting a preliminary injunction in favor of the plaintiff, enjoining and restraining defendant, JACKSON AVENUE REALTY LLC, from undertaking any actions that would interfere with the status quo by allowing the plaintiff Condominium to continue to exercise possession, common custody and control over the superintendent's office(or storage room) pending the final determination of the complaint:

Papers

Numbered

Plaintiff's Order to Show Cause-Affirmation-Exhibits......1 - 6

Defendant's Affirmation in Opposition.....................7 - 11

Plaintiff's Affirmation in Reply.........................12 - 14

_________________________________________________________________

Plaintiff commenced this action against the defendant by filing a summons and complaint on April 25, 2014 seeking a declaratory judgment declaring that the telephone room and superintendent's office (named "storage" on the floor plan) are [*2]both common elements of the condominium over which the condominium has exclusive ownership, possession and control. Plaintiff also asserts a second cause of action for breach of contract alleging that the sponsor failed to construct a working toilet in the storage room and a third cause of action for expenses and attorneys fees.

According to the complaint, the plaintiff is the Board of Managers of the Echelon Condominium located at 13-11 Jackson Avenue, Long Island City, New York 11101. Defendant, Jackson Avenue Realty LLC, is the declarant and sponsor of the condominium. The sponsor is also the owner of a commercial unit located on the first floor of the condominium building designated as Commercial Unit A (sponsor's unit). The complaint asserts that pursuant to Real Property Law § 339-n(5) a condominium's declaration must contain a "description of the [condominium's] common elements and a statement of the common interest of each unit owner." The complaint states that the subject declaration states at Article 5.4.3 that the common elements of the condominium's first floor consist of, "the areas and facilities located on the ground floor as follows: tenant recreation area, lobby, custodian closet, compactor room, trash room, package room, mail room, telephone/television closet, superintendent's office, telephone room, electrical room, water meter room, gas meter room."

Plaintiff contends that notwithstanding the statement in the declaration concerning a superintendent's office in the common areas, the defendant has threatened by way of letter dated April 18, 2014, to take possession of what is now being used by the condominium as a superintendent's office, a room on the floor plan which is denominated as "storage." In its letter, counsel for the declarant and sponsor, Jackson Avenue Realty, asserts that the area in question, delineated "storage" is in fact not part of the common area, but rather, is part of Commercial Unit A owned by the defendants. The defendants now seek to assert exclusive possesion over the space.

The complaint also states that the only bathroom currently available on the 1st floor for the use of the Condominium's employees is located in the Superintendent's Office. Plaintiff states that the condominium has used the superintendent's office/storage and telephone room as intended by the Declaration for the past 7 years without objection or interference by the sponsor. Counsel states that if the sponsor is allowed to take possession of the superintendent's office at this time, than the condominium's superintendent would have no place to perform his work duties and the condominium's employees will have no access to a bathroom on the first floor.

Therefore, the plaintiff ultimately seeks a declaration that the superintendent's office and the telephone room located within the superintendent's office (named "storage" on the floor plan) [*3]are both common elements of the condominium over which the condominium has exclusive ownership, possession, and control and that the defendant is in breach of contract for failing to construct a bathroom.

Based upon the above allegations, the plaintiff now seeks to enjoin the defendants from undertaking any actions that would interfere with the status quo by allowing the plaintiff condominium to exercise possession, common custody and control over the superintendent's office(or storage room) pending the final resolution of the complaint.

In support of the motion for an injunction, Ronald Stankiewicz, the President of the Board of Managers submits a floor plan which was filed as part of the declaration. On that floor plan there is an area adjacent to the sponsor's retail space unit which is delineated as "storage" which is 522 square feet and contains a toilet. Mr Stankiewicz states that the "storage room" has been utilized as the superintendent's room for over seven years. The superintendent uses the room to break down garbage and to store building supplies. Counsel claims that as the declaration provides for a superintendent's room as part of the common area, but does not provide for a storage room, that he floor plan is in error and has labeled the superintendent's office as a storage area in error.

The affidavit claims that there is a likelihood of success on the merits because the declaration states that the superintendent's room is part of the common areas and because the condominium has been using the area as a superintendent's room for over seven years without interruption or interference by the sponsor.Further, plaintiff contends there is nothing in the floor plan which delineates the storage area as part of the sponsor's retail unit as each room as its own square footage listed separately. Further, the plaintiff asserts hat there is no working toilet in the alleged common area and as such the sponsor is in breach of the declaration filed with the Attorney General.

With respect to irreparable harm, plaintiff asserts if the defendant was permitted to take possession of the superintendent's office that the superintendent will have no place to do his job. Counsel contends that balancing the equities favors the plaintiff because under the circumstances the defendant has had no objection to the present arrangement for over seven years and as such the defendant cannot claim hardship at this time. Thus, the plaintiff contends that the balance of equities favors granting the temporary injunction to maintain the status quo pending a final determination of the complaint.

In opposition, Yaron Hershco, the Managing Member of defendant, Jackson Avenue Realty LLC, states that Jackson established its plan for condominium ownership by filing a [*4]declaration on March 5, 2007, in which Jackson is stated to be the owner, among other unsold units, of a commercial unit on the first floor designated on the floor plan as "Non-Residential A". Hershco states that in addition to filing a declaration the defendant also filed a set of plans for each unit. The floor plan map filed for non-residential unit A shows the "storage area' as being part of the contiguous unit as it is shaded similarly to Unit A. In addition, counsel points out that the declaration with regard to Unit A states that it is comprised of 2684 square feet which is the total square footage including the "storage area." Counsel claims that Jackson has paid all common charges and real estate taxes associated with Unit A since 2007 and states that only as an accommodation has defendant permitted the superintendent to utilize the space as a temporary superintendent's office. Counsel claims that by letter dated August 7, 2013, the defendant notified the plaintiff that the use of the room was permissive only and that Jackson could revoke such permissive use at any time. Defendant asserts that the plaintiff failed to remove their property from the storage room when called upon to do so by letter dated April 18, 2014.

To establish entitlement to a preliminary injunction, a movant must establish (1) a likelihood or probability of success on the merits, (2) irreparable harm in the absence of an injunction, and (3) a balance of the equities in favor of granting the injunction" (Stockley v Gorelik, 24 AD3d 535 [2d Dept. 2005]; (see Brach v Harmony Servs., Inc., 93 AD3d 748 [2d Dept. 2012]; Matter of Advanced Digital Sec. Solutions, Inc. v Samsung Techwin Co., Ltd., 53 AD3d 612 [2d Dept. 2008]; Montauk-Star Is. Realty Group v Deep Sea Yacht & Racquet Club, 111 AD2d 909 [2d Dept. 1985]). "A court evaluating a motion for a preliminary injunction must be mindful that the purpose of a preliminary injunction is to maintain the status quo, not to determine the ultimate rights of the parties (Masjid Usman, Inc. v Beech 140, LLC, 68 AD3d 942 [2d Dept. 2009]; also see Matter of Wheaton/TMW Fourth Ave., LP v New York City Dept. of Bldgs., 65 AD3d 1051 [2d Dept. 2009]; Coinmach Corp. v Alley Pond Owners Corp., 25 AD3d 642 [2d Dept. 2006]). Further, "a party seeking the drastic remedy of a preliminary injunction must establish a clear right to that relief under the law and the undisputed facts" (Omakaze Sushi Rest., Inc. v Ngan Kam Lee, 57 AD3d 497, 497 [2d Dept. 2008]; also see Peterson v Corbin, 275 AD2d 35[2d Dept. 2000]).

Here, this court finds that there is a triable issue of fact as to whether the spaced marked "storage" on the floor plan is part of non-residential unit A owned by defendant or is part of the common area designated on the declaration as the superintendent's office but not properly designated as such on the floor plan. As the declaration provides for a superintendent's office and telephone/ television closet which [*5]is in the superintendents office, there is an issue as to which area, if any, on the floor plan for the first floor would be the superintendent's office if not the so called storage area. Thus, as there is a disparity between the text of the declaration and the floor plan submitted with regard to the ownership of the "storage area," the ambiguity raises a question of fact which shall be determined after discovery and trial on the merits.

Although moving property out of the so-called storage area prior to trial would not necessarily cause irreparable damage to the plaintiff, the fact of the matter is that the defendant has concededly permitted the storage area to be used as a superintendent's room for the past seven years although by letter in 2013 reserving its right to revoke permission.

This court finds that as the space has been utilized the by superintendent for the past seven years without objection from the sponsor, and as the sponsor has not shown that it has an immediate need to utilize the disputed space for any particular purpose at this time, this court finds that a balancing of the equities favors restraining the defendant from taking possession of the space pending the resolution of the complaint. The plaintiff has shown that any injury it is likely to sustain will be more burdensome to them than the harm likely to be caused to the defendant as the defendant will have immediate access to the space should they prevail at trial. A preliminary injunction may be granted to maintain the status quo, even if the movant's success on the merits cannot be determined when the motion for that relief is brought (see Coinmach Corp. v Alley Pond Owners Corp., 25 AD3d 642 [1st Dept. 2006] [the purpose of a preliminary injunction is to maintain the status quo, not to determine the ultimate rights of the parties]). Further, the existence of factual disputes will not preclude the granting of temporary injunctive relief in order to maintain the status quo U.S. Reinsurance Corp. v Humphreys, 205 AD2d 187 [1st Dept 1994]).

Therefore, this court finds a balance of the equities favors the granting of preliminary injunctive relief to maintain the status quo pending the resolution of the action (see Masjid Usman, Inc. v Beech 140, LLC, 68 AD3d 942 [2d Dept. 2009]; S.P.Q.R. Co., Inc. v United Rockland Stairs, Inc., 57 AD3d 642 [2d Dept. 2008]).

Accordingly, for all of the above stated reasons, it is hereby,ORDERED, that plaintiff's motion for a preliminary injunction is granted and the defendant, JACKSON AVENUE REALTY LLC, shall be preliminary enjoined from taking any action that would interfere with the status quo by allowing the plaintiff, Board of Managers, to continue to exercise possession, common custody and control over the superintendent's office and the defendant shall not discard any property belonging to the plaintiff presently situated in the superintendent's office until such time as the action is finally resolved.[*6]Dated: August 18, 2014

Long Island City, NY

___________________ROBERT J. MCDONALD

J.S.C.