MATOS v. New York City Transit Authority, appellant-respondent. (2005)

In an action, inter alia, for injunctive relief, the defendant New York City Transit Authority appeals, as limited by its brief, from so much of an order of the Supreme Court, Richmond County (Mega, J.), dated June 25, 2004, as granted that branch of the plaintiff's motion which was for preliminary mandatory injunctive relief to the extent of directing it to monitor the speed of express buses at a certain location, and the plaintiff cross-appeals, as limited by her brief, from so much of the same order as denied that branch of her motion which was for certain preliminary mandatory injunctive relief against the defendants City of New York and New York City Transit Authority.

ORDERED that the order is reversed insofar as appealed from, on the law, and that branch of the motion which was for preliminary mandatory injunctive relief against the defendant New York City Transit Authority to the extent of directing it to monitor the speed of express buses at a certain location is denied;  and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the defendant New York City Transit Authority payable by the plaintiff.

 To establish entitlement to a preliminary injunction, a movant must establish (1) a likelihood or probability of success on the merits, (2) irreparable harm in the absence of an injunction, and (3) a balance of the equities in favor of granting the injunction (see Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 862, 552 N.Y.S.2d 918, 552 N.E.2d 166;  Doe v. Axelrod, 73 N.Y.2d 748, 750, 536 N.Y.S.2d 44, 532 N.E.2d 1272;  Grant Co. v. Srogi, 52 N.Y.2d 496, 517, 438 N.Y.S.2d 761, 420 N.E.2d 953;  Milbrandt & Co. v. Griffin, 1 A.D.3d 327, 766 N.Y.S.2d 588;  Matter of Merscorp, Inc. v. Romaine, 295 A.D.2d 431, 432, 743 N.Y.S.2d 562;  Blueberries Gourmet, Inc. v. Aris Realty Corp., 255 A.D.2d 348, 349, 680 N.Y.S.2d 557).

 A mandatory injunction, which is used to compel the performance of an act (see Matter of Wyckoff Hghts. Med. Ctr. v. Rodriguez, 191 Misc.2d 207, 208, 741 N.Y.S.2d 400), is an extraordinary and drastic remedy which is rarely granted and then only under unusual circumstances where such relief is essential to maintain the status quo pending trial of the action (see Rosa Hair Stylists v. Jaber Food Corp., 218 A.D.2d 793, 794, 631 N.Y.S.2d 167;  Times Square Stores Corp. v. Bernice Realty Co., 107 A.D.2d 677, 682, 484 N.Y.S.2d 591).

 Here, the plaintiff's allegations in support of the motion were conclusory and insufficient to establish entitlement to a preliminary mandatory injunction (see L & J Roost, Ltd. v. Department of Consumer Affairs of the City of New York, 128 A.D.2d 677, 679, 513 N.Y.S.2d 177;  Henry v. Suffolk Home Dist., 118 A.D.2d 685, 500 N.Y.S.2d 265).   The plaintiff's request for monetary damages undercut her claim of irreparable injury (see Neos v. Lacey, 291 A.D.2d 434, 435, 737 N.Y.S.2d 394;  White Bay Enter., Ltd. v. Newsday, 258 A.D.2d 520, 521, 685 N.Y.S.2d 257, Price Paper & Twine Co. v. Miller, 182 A.D.2d 748, 750, 582 N.Y.S.2d 746).   Therefore, the Supreme Court properly denied that branch of the plaintiff's motion which was for certain preliminary mandatory injunctive relief against the defendants City of New York and New York City Transit Authority (hereinafter the NYCTA).   However, the Supreme Court's grant of certain other preliminary mandatory injunctive relief against the NYCTA was erroneous since the plaintiff failed to sustain her burden as to entitle her to such drastic and extraordinary relief.