Blue Sphere Corp. v York Renewable Energy Partners, LLC

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Blue Sphere Corp. v York Renewable Energy Partners, LLC 2020 NY Slip Op 33527(U) October 26, 2020 Supreme Court, New York County Docket Number: 653650/2020 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 10/26/2020 04:53 PM NYSCEF DOC. NO. 102 INDEX NO. 653650/2020 RECEIVED NYSCEF: 10/26/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART IAS MOTION 59EFM Justice -------------------------------------------------------X BLUE SPHERE CORPORATION, INDEX NO. 653650/2020 10/2312020 MOTION DATE Petitioner, MOTION SEQ. NO. 001 - II - DECISION + ORDER ON MOTION YORK RENEWABLE ENERGY PARTNERS, LLC, Respondent ------------------------··------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 2. 3. 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19,22.23,24,25,26,27,28,29,30,31, 32, 33, 34,35,36,37,38,39,40, 41,42,43,44,45,46,47,48,49,50,51,52,53,54, 55,56,57,58,59,60,61,62,63,64,65,66,67,68, 69, 70 PRELIMINARY INJUNCTION were read on this motion to/for ORDER Upon the foregoing documents, it is hereby ORDERED that the petition seeking a preliminary injunction pending the arbitration award between the parties is DENIED; and is further ORDERED that the Interim Order dated September 20, 2020 is vacated, and of no force and effect;· and it is further ORDERED that respondent's cross motion/counterclaim to compel arbitration of petitioner's application for a provisional remedy pending the arbitration award is granted, without costs and claims for disbursements; and it is further ORDERED that petitioner shall arbitrate its provisional equitable relief against respondent in accordance with 65365012020 BLUE SPHERE CORPORATION vs. YORK RENEWABLE ENERGY Motion No. 001 1 of 5 Page1of5. [*FILED: 2] NEW YORK COUNTY CLERK 10/26/2020 04:53 PM NYSCEF DOC. NO. 102 INDEX NO. 653650/2020 RECEIVED NYSCEF: 10/26/2020 the Amended and Restated Limited Liability Company Agreement of Concord LLC, Energy Partners, dated January 30, 2015 and the American Arbitration Association Commercial Rules and Mediation Procedures; and it is further ADJUDGED that the parties shall proceed to arbitration of the application counsel for shall provisional serve a relief forthwith copy of this judgment and respondent's upon the arbitral tribunal. DECISION Section 12.04(b) of the Restated Operating Agreement (Operating Agreement) states,' in pertinent part: "The parties agree that notwithstanding the foregoing, prior to the appointment of the arbitrator, nothing herein shall prevent any party from seeking preliminary or temporary injunctive relief against any other party in the United States Federal or state courts of New York, County of New York. For the avoidance of doubt, any action for permanent relief or monetary damages shall be settled by arbitration." It is undisputed that on August 6, 2020, in accordance with such provision, petitioner filed a show cause order, which commenced this proceeding, seeking a temporary restraining order. The court denied such interim relief on August 20, petitioner did not demonstrate any immediacy. 2020 because On September 21, 2020, the return date of the show cause order, by Interim Order 65365012020 BLUE SPHERE CORPORATION vs. YORK RENEWABLE ENERGY Motion No. 001 2 of 5 Page 2 of5 [*FILED: 3] NEW YORK COUNTY CLERK 10/26/2020 04:53 PM INDEX NO. 653650/2020 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 10/26/2020 dated September 21, 2020, on consent of both partiesi, this court issued a preliminary injunction, which provided that, during the pendency of this proceeding, respondent was restrained "from suffering to be done, directly or through any attorney, agent, servant, employee or other person under its supervision or control or otherwise, of any of the following acts: "marketing, selling or transferring its Membership Interest, or taking any steps or actions toward marketing, selling, or transferring its Membership Units in Concord and/or Rhode :::sland to anyor.e other than Petitioner". As issue had not yet been joined, the court adjourned argument on the petition, which sought a preliminary injunction in aid of arbitration, i.e., a preliminary injunction restraining respondent pending the arbitration award, until October 23, 2020, to allow service and filing of an answer and a reply to any counterclaims, and reserved decision on the requisite undertaking. Though petitioner delivered a Demand for Arbit,ration dated July 29, 2020 (Demand) to respondent, it never filed the Demand with the American Arbitration Association 10, 2020. (AAA) until September Without such filing, no arbitrator could be appointed, which enabled petitioner to seek provisional relief in this court under Operating Agreement Section 12.04. It was not until the filing on September 9, 2020 of a demand for arbitration with the 'Respondent argues that it never agreed to any restraint on its marketing or taking steps to market the Membership Units and points out that the ad damnum clause of the petition seeks no such relief. 65365012020 BLUE SPHERE CORPORATION Motion No. 001 vs. YORK RENEWABLE ENERGY 3 of 5 Page 3 of5 [*FILED: 4] NEW YORK COUNTY CLERK 10/26/2020 04:53 PM NYSCEF DOC. NO. 102 INDEX NO. 653650/2020 RECEIVED NYSCEF: 10/26/2020 This court finds that petitioner's decision to move this court for temporary restraining and preliminary injunctive rel f, rather than enable the appointment of an arbitrator, was a matter of strategy rather than necessity. On that basis, this court declines to exercise its discretion to grant to petitioner a preliminary injunction, pending resolution of the arbitration, without prejudice to petitioner seeking such relief from the appointed arbitrator. As argued by respondent, and not denied by petitioner, the Operating Agreement and the AAA rules, incorporated by reference thereunder, empower the arbitrator to grant a preliminary injunction to petitioner, in the context of the arbitration of the parties' disputes about specific performance and injunctive relief under such agreement. This court concurs with respondent 65365012020 BLUE SPHERE CORPORATION vs. YORK RENEWABLE ENERGY Motion No. 001 4 of 5 Page 4 of 5 [*FILED: 5] NEW YORK COUNTY CLERK 10/26/2020 04:53 PM NYSCEF DOC. NO. 102 that it would INDEX NO. 653650/2020 RECEIVED NYSCEF: 10/26/2020 inappropriate for this court to entangle itself in such disputes now pending before an arbitrator, the forum that the parties chose under the Operating Agreement. Enterprises Corp. See Haulage v Hempstead Resources Recovery Corp., 74 AD2d 863 (2d Dept. 1980) and Park City Associates v Total Energy Leasing Corp., 58 AD2d 786 (l•t Dept. 1977). 1012612020 o BRA 1.:SAFlies; J.s.c. DATE CHECK ONE: CASE DISPOSED GRANTED 0 . DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN 55365012020 BLUE SPHERE CORPORATION ~ NON~F'INAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT vs. YORK RENEWABLE ENERGY Motion No. 001 5 of 5 D D OTHER REFERENCE Page5of5

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