KOSEK v. ENGEL (2025)

DECISION & ORDER

In an action, inter alia, for injunctive relief and to recover damages for private nuisance, the defendants appeal from an order of the Supreme Court, Kings County (Ingrid Joseph, J.), dated March 10, 2022.  The order, insofar as appealed from, granted the plaintiffs' motion for a preliminary injunction to the extent of enjoining the defendants from making, causing, or permitting to be made or caused, from their household, any music, or other sounds, via stereo, speaker, or any device, in excess of 42 decibels.

ORDERED that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Kings County, to fix an appropriate undertaking pursuant to CPLR 6312.

The plaintiffs and the defendants are the respective owners of neighboring residences in Brooklyn that share a common wall.  In March 2021, the plaintiffs commenced this action against the defendants to recover damages for violation of Civil Rights Law § 52–a and private nuisance, and to permanently enjoin the defendants from, inter alia, permitting unreasonable and disturbing noise from the defendants' residence to permeate the plaintiffs' residence.  Thereafter, the plaintiffs moved for a preliminary injunction.  In an order dated March 10, 2022, the Supreme Court granted the plaintiff's motion for a preliminary injunction to the extent of enjoining the defendants from making, causing, or permitting to be made or caused, from their household, any music, or other sounds, via stereo, speaker, or any device, in excess of 42 decibels.  The defendants appeal.

“ ‘To obtain a preliminary injunction, a movant must establish (1) a likelihood of ultimate success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) a balancing of the equities in the movant's favor’ ” (Samaha v. Brooklyn Bridge Park Corp., 230 A.D.3d 608, 610, 217 N.Y.S.3d 166, quoting Arcamone–Makinano v. Britton Prop., Inc., 83 A.D.3d 623, 624, 920 N.Y.S.2d 362).  “ ‘As a general rule, the decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court’ ” (Commissioner of N.Y. State Dept. of Transp. v. Polite, 236 A.D.3d 82, 114, 225 N.Y.S.3d 106, quoting Shake Shack Fulton St. Brooklyn, LLC v. Allied Prop. Group, LLC, 177 A.D.3d 924, 927, 112 N.Y.S.3d 196;  see Boyd v. Assanah, 210 A.D.3d 855, 856, 179 N.Y.S.3d 77).  “ ‘The mere existence of an issue of fact will not itself be grounds for the denial of the motion’ ” (Samaha v. Brooklyn Bridge Park Corp., 230 A.D.3d at 609, 217 N.Y.S.3d 166, quoting Arcamone–Makinano v. Britton Prop., Inc, 83 A.D.3d at 625, 920 N.Y.S.2d 362;  see CPLR 6312[c]).

Here, the Supreme Court providently exercised its discretion in granting the plaintiffs' motion for a preliminary injunction to the extent indicated.  The plaintiffs demonstrated a likelihood of success on the merits, irreparable injury absent the preliminary injunction, and that the balance of the equities favored the injunctive relief granted (see Samaha v. Brooklyn Bridge Park Corp., 230 A.D.3d at 608–609, 217 N.Y.S.3d 166;  Ferdinand v. Salino, 170 A.D.3d 670, 672, 95 N.Y.S.3d 304;  61 W. 62 Owners Corp. v. CGM EMP LLC, 77 A.D.3d 330, 335, 906 N.Y.S.2d 549, mod.  16 N.Y.3d 822, 921 N.Y.S.2d 184, 946 N.E.2d 172).

However, CPLR 6312(b) provides that, upon the granting of a preliminary injunction, a plaintiff “shall give an undertaking in an amount to be fixed by the court.”  “Thus, [w]hile fixing the amount of an undertaking when granting a motion for a preliminary injunction is a matter within the sound discretion of the court, CPLR 6312(b) clearly and unequivocally requires the party seeking an injunction to give an undertaking” (Huang v. Shih, 164 A.D.3d 1298, 1298, 81 N.Y.S.3d 745 [internal quotation marks omitted];  see 159 Smith, LLC v. Boreum Hill Prop. Holdings, LLC, 191 A.D.3d 741, 742–743, 141 N.Y.S.3d 486).  Here, the Supreme Court did not fix the amount of an undertaking that the plaintiffs are required to give.  Thus, the matter must be remitted to the Supreme Court, Kings County, to fix the amount of the undertaking (see 159 Smith, LLC v. Boreum Hill Prop. Holdings, LLC, 191 A.D.3d at 742–743, 141 N.Y.S.3d 486).

MILLER, J.P., DOWLING, WAN and HOM, JJ., concur.