Opinion
INDEX NO. 156486/2016
04-29-2021
GERALDINE ANDREAS, CHRISTOPHER DARK, GERALDINE ANDREAS A/K/A GERI ANDREAS AND CHRISTOPHER DARK A/K/A CHRISTOPHER J.L. DARK AS A SHAREHOLDERS OF 186 TENANTS CORP., Plaintiff, v. JUSTINE CUSHING, 186 TENANTS CORP., Defendant.
NYSCEF DOC. NO. 368 PRESENT: HON. ALEXANDER M. TISCH Justice MOTION DATE 01/18/2021 MOTION SEQ. NO. 011
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 011) 336, 337, 338, 339, 340, 341, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 357 were read on this motion to/for RENEW/REARGUE/RESETTLE/RECONSIDER.
Upon the foregoing documents, plaintiffs move for leave to renew and reargue the decision and order of this Court dated September 22, 2020 (NYSCEF Doc. No. 327), which granted defendant 186 Tenant Corp.'s (the Corporation's) motion for, inter alia, summary judgment on its fifth counter claim (motion sequence no. 9). Defendants cross move for a preliminary injunction to pay maintenance pending this action.
Though the notice of cross motion indicates that the motion is being made by all defendants for which counsel represents (NYSCEF Doc. No. 344), the relief requested relates only to the sixth counterclaim, which is asserted only by the corporate defendant 186 Tenants Corp. (see NYSCEF Doc. No. 259 [amended answer with counter claims]).
A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination" (CPLR 2221 [e] [2]). No facts have been specifically identified as such. The Court has, in any event, reviewed the papers and does not find any new fact that would change the prior determination.
"A motion for reargument is addressed to the sound discretion of the court and may be granted upon a showing that the court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law" (McGill v Goldman, 261 AD2d 593, 594 [2d Dept 1999]). "Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided" (Foley v Roche, 68 AD2d 558, 567 [1st Dept 19791; see Anthony J. Carter, DDS, P.C. v Carter, 81 AD3d 819, 820 [2d Dept 2011]).
The Court finds that the issues identified by plaintiffs as overlooked or misapprehended by the Court were in fact properly addressed. Therefore, leave to reargue should be denied. Even if leave to reargue was granted, the Court would adhere to its original determination for the reasons set forth in its many decisions and orders.
The Court already determined that Article I, paragraph Third is not applicable to the extent that it concerns fire damage (see NYSCEF Doc. No. 256). Notwithstanding that part of the paragraph that states "or otherwise," which plaintiffs claim this Court overlooked, the paragraph goes on to address a warranty of habitability, which was rejected and dismissed by the Court in a separate prior order (see NYSCEF Doc. No. 196). Further, the Court finds that the controlling paragraph, under which plaintiffs' action is based in relevant part, is Article II, paragraph Fifteenth, which is explicit in stating that there shall not be an abatement of rent (see NYSCEF Doc. No. 277). Even if the plaintiffs are ultimately successful in this case to hold the Corporation liable for the damage to the subject unit, the proprietary lease makes clear that the requirement to pay rent is independent and separate and apart from any potential finding of negligence.
Defendants' cross motion for a preliminary injunction seeks to order plaintiffs to pay maintenance pendent lite in relation to its sixth counterclaim for a permanent injunction to enjoin plaintiffs from continuing to withhold payment of maintenance and levied assessments. Defendants are, in this cross motion, essentially asking for the ultimate relief sought in the cause of action for a permanent injunction, which is typically improper for a preliminary injunction (Second on Second Cafe, Inc. v Hing Sing Trading, Inc., 66 AD3d 255, 264 [1st Dept 2009] ["a mandatory preliminary injunction (one mandating specific conduct), by which the movant would receive some form of the ultimate relief sought as a final judgment, is granted only in 'unusual' situations"]; see Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C6301:1, citing Bachman v Harrington, 184 NY 458, 463 [1906]).
"While courts are generally 'reluctant' to grant mandatory preliminary injunctions, and such relief will be granted only where 'the right [thereto] is clearly established,' cases do arise where a provisional remedy of this nature is appropriate" (Second on Second Cafe, Inc. v Hing Sing Trading, Inc., 66 AD3d 255, 265 [1st Dept 2009] [internal citations omitted]).
The Court finds that this is one of those unusual situations. The cross-motion papers note that although the Court previously granted the related relief in its order granting motion sequence no. 9, the order did not address any continuing obligation to pay, i.e., the relief sought here. However, defendants' motion did not seek relief on the sixth cause of action in that motion. Had they done so, it would have obviated the need to make this motion.
Consequently, defendants have already satisfied their "heavy burden of proving a clear right to mandatory injunctive relief, which, in effect, would grant the plaintiff the ultimate relief requested" (Rosa Hair Stylists, Inc. v Jaber Food Corp., 218 AD2d 793, 794 [2d Dept 1995]). The record demonstrates that the Court previously granted their motion for a preliminary injunction to direct plaintiffs to pay maintenance in escrow pendent lite (see NYSCEF Doc. No. 256), and subsequently granted the Corporation's motion for summary judgment on its fifth cause of action for breach of proprietary lease in failing to pay maintenance (NYSCEF Doc. No. 327). Accordingly, the record is clear that the Corporation is entitled to the relief sought as it is in separable from the prior findings of the Court (cf. id.; Morgan v New York Racing Ass'n, 72 AD2d 740, 741 [2d Dept 1979]). It would bear little sense to deny this cross-motion only to require defendants to move again on its permanent injunction, all whilst being irreparably harmed as set forth in the Court's decision and order granting the preliminary injunction (see NYSCEF Doc. No. 256; see generally Chrysler Corp. v Fedders Corp., 63 AD2d 567, 568-69 [1st Dept 1978]). In other words, although it is well-settled that "injunctive relief will not issue where its effect will be to grant all the relief to which the party may be entitled after a trial" (Chrysler Corp. v Fedders Corp., 63 AD2d 567, 568-69 [1st Dept 1978]), the relief requested was already decided as a matter of law without a need for a trial and is therefore appropriate here.
Accordingly, it is hereby ORDERED that plaintiffs' motion for leave to renew and reargue is denied in its entirety; and it is further
ORDERED that the cross motion is granted and plaintiffs are enjoined from withholding maintenance and any levied assessments based upon the facts alleged in the amended complaint or any present condition alleged by plaintiffs in this lawsuit.
This constitutes the decision and order of the Court. 4/29/2021
DATE
/s/ _________
ALEXANDER M. TISCH, J.S.C.