EAST FORDHAM DE LLC v. BANK NATIONAL ASSOCIATION (2019)

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about March 30, 2017, which granted plaintiff's motion for a preliminary injunction to the extent of enjoining defendants from seeking to enforce the applicability of any terms of the loan modification agreement, including the right to foreclose on the loan, and from seeking to exercise their rights with respect to “a certain Deed–in–Lieu of Foreclosure, a certain Foreclosure Affidavit, and a certain Receivership Affidavit and the Pledged Membership Interest placed in escrow pursuant to the Loan Modification Agreement” (the “self-help” documents), unanimously modified, on the law and the facts, to enjoin defendants only from seeking to exercise their rights with respect to the aforesaid deed in lieu of foreclosure, foreclosure affidavit, and receivership affidavit and pledged membership interest, and to remand for a determination of an appropriate undertaking, and otherwise affirmed, without costs.

The court was not precluded from granting the preliminary injunction by this Court's prior order reversing the grant of a permanent injunction (see East Fordham DE LLC v. U.S. Bank N.A., 146 A.D.3d 610, 44 N.Y.S.3d 903 [1st Dept. 2017] ).  Nor did it improperly issue the injunction in disregard of its own order three days earlier denying plaintiff's contempt motion, which involved a request for different relief.

Under the circumstances, we reject defendants' argument that the injunction was issued in violation of CPLR 6312(c) because there was no hearing and appropriate determination.  The court correctly found that plaintiff met its burden of showing a likelihood of success on the merits, imminent irreparable harm, and a balance of the equities in its favor to the extent it sought to enjoin defendants from executing the “self-help” documents that would allow a non-judicial foreclosure of its property (see e.g. Concourse Rehabilitation & Nursing Ctr., Inc. v. Gracon Assoc., 64 A.D.3d 405, 881 N.Y.S.2d 293 [1st Dept. 2009] ).  However, plaintiff did not make a showing adequate to warrant restraining defendants from seeking to enforce the various terms and conditions of the loan modification agreement.

The court should have ordered plaintiff to post an undertaking (CPLR 6312[b];  Scotto v. Mei, 219 A.D.2d 181, 185, 642 N.Y.S.2d 863 [1st Dept. 1996] ).