Opinion
2019–08969 Index No. 520414/18
02-10-2021
159 SMITH, LLC, respondent, v. BOREUM HILL PROPERTY HOLDINGS, LLC, appellant, et al., defendants.
Ronald Francis, New York, NY, for appellant. The Law Firm of Elias C. Schwartz, PLLC, Great Neck, N.Y. (Michelle C. Englander and Sarah R. Gitomer of counsel), for respondent.
Ronald Francis, New York, NY, for appellant.
The Law Firm of Elias C. Schwartz, PLLC, Great Neck, N.Y. (Michelle C. Englander and Sarah R. Gitomer of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for trespass, the defendant Boreum Hill Property Holdings, LLC, appeals from an order of the Supreme Court, Kings County (Wavny Toussaint, J.), dated May 24, 2019. The order granted the plaintiff's motion for a preliminary injunction.
ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Kings County, to fix an appropriate undertaking pursuant to CPLR 6312.
The plaintiff is the owner of a building located at 159 Smith Street in Brooklyn. The defendant Boreum Hill Property Holdings, LLC (hereinafter Boreum Hill), owns a lot adjoining the plaintiff's building. In 2018, Boreum Hill began constructing a new building on that lot. The plaintiff alleges that in the course of that construction, Boreum Hill and/or its agents and contractors entered the plaintiff's property without permission. The plaintiff alleges that agents and/or contractors for Boreum Hill then drilled multiple holes in the wall of the plaintiff's building, and attached tie rods to those holes in order to secure the foundation of the new building. The plaintiff commenced this action, inter alia, to recover damages for trespass and for an order directing the removal of the encroachment. In an order dated May 24, 2019, the Supreme Court granted the plaintiff's motion for a preliminary injunction enjoining the defendants from engaging in, among other things, any construction activities on that portion of its property which adjoins or abuts the plaintiff's property.
Contrary to the plaintiff's contention, the May 24, 2019 order is appealable (see CPLR 5701[a] ).
The Supreme Court providently exercised its discretion in granting the plaintiff's motion for a preliminary injunction. "The decision to grant a preliminary injunction is a matter ordinarily committed to the sound discretion of the court hearing the motion" ( Nelson, L.P. v. Jannace, 248 A.D.2d 448, 448–449, 668 N.Y.S.2d 936 ; see Doe v. Axelrod, 73 N.Y.2d 748, 750, 536 N.Y.S.2d 44, 532 N.E.2d 1272 ; Automated Waste Disposal, Inc. v Mid–Hudson Waste, Inc., 50 A.D.3d 1072, 1073, 857 N.Y.S.2d 648 ). "The party seeking a preliminary injunction must 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 N.Y.3d 839, 840, 800 N.Y.S.2d 48, 833 N.E.2d 191 ; see CPLR 6301 ). "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 A.D.3d 595, 596, 789 N.Y.S.2d 505 ; see 538 Morgan Ave. Props., LLC v 538 Morgan Realty, LLC, 186 A.D.3d 657, 658, 127 N.Y.S.3d 313 ).
As the Supreme Court determined, the plaintiff demonstrated a likelihood of success as to, inter alia, its trespass cause of action (see 211–12 N. Blvd. Corp. v. LIC Contr., Inc., 186 A.D.3d 69, 81, 128 N.Y.S.3d 551 ; see also Madison 96th Assoc., LLC v 17 E. 96th Owners Corp., 121 A.D.3d 605, 607, 995 N.Y.S.2d 553 ). The plaintiff also demonstrated that it would suffer irreparable injury absent an injunction, and that the balance of the equities favored injunctive relief (see 84–85 Gardens Owners Corp. v 84–12 35th Ave. Apt. Corp., 91 A.D.3d 702, 703, 937 N.Y.S.2d 107 ; Arcamone–Makinano v. Britton Prop., Inc., 83 A.D.3d 623, 625, 920 N.Y.S.2d 362 ).
Contrary to the contention of Boreum Hill, the Supreme Court providently exercised its discretion in directing the preliminary injunction to remain in place until, in effect, a settlement or conclusion of this action (see CPLR 6301 ). However, CPLR 6312(b) provides that in order to obtain a preliminary injunction, "the plaintiff shall give an undertaking in an amount to be fixed by the court, that the plaintiff, if it is finally determined that he or she was not entitled to an injunction, will pay to the defendant all damages and costs which may be sustained by reason of the injunction." While the amount of the undertaking is a matter within the sound discretion of the court, the statute requires that the plaintiff give an undertaking in the amount fixed by the court (see Huang v. Shih, 164 A.D.3d 1298, 1298, 81 N.Y.S.3d 745 ; Mobstub, Inc. v. www.staytrendy.com, 153 A.D.3d 809, 810, 60 N.Y.S.3d 356 ; Ying Fung Moy v. Hohi Umeki, 10 A.D.3d 604, 605, 781 N.Y.S.2d 684 ; Hightower v. Reid, 5 A.D.3d 440, 441, 772 N.Y.S.2d 575 ). Here, the court did not fix the amount of the undertaking the plaintiff is required to give. Accordingly, the matter must be remitted to the Supreme Court, Kings County, to fix the amount of the undertaking (see Cong. Machon Chana v Machon Chana Women's Inst., Inc., 162 A.D.3d 635, 638, 80 N.Y.S.3d 61 ; Mobstub, Inc. v. www.staytrendy.com, 153 A.D.3d at 810, 60 N.Y.S.3d 356 ; Dupigny v. St. Louis, 115 A.D.3d 638, 641, 981 N.Y.S.2d 765 ; Butt v. Malik, 106 A.D.3d 849, 850, 965 N.Y.S.2d 540 ; Winchester Global Trust Co. Ltd. v Donovan, 58 A.D.3d 833, 834, 873 N.Y.S.2d 130 ; Ying Fung Moy v. Hohi Umeki, 10 A.D.3d at 605, 781 N.Y.S.2d 684 ; Hightower v. Reid, 5 A.D.3d at 441, 772 N.Y.S.2d 575 ).
CHAMBERS, J.P., AUSTIN, LASALLE and BRATHWAITE NELSON, JJ., concur.