PETERVARY v. BUBNIS (2006)

In an action for specific performance of a contract for the sale of real property, the plaintiff appeals, as limited by his brief, from so much of (1) an order of the Supreme Court, Suffolk County (Loughlin, J.), dated September 2, 2004, as denied his motion for a preliminary injunction, and (2) an order of the same court dated November 1, 2004, as denied his motion to extend a notice of pendency.

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.

The Supreme Court correctly declined to grant preliminary injunctive relief.   To be entitled to preliminary injunctive relief, a movant must establish (1) the likelihood of success on the merits, (2) irreparable injury absent the granting of the preliminary injunction, and (3) a balancing of the equities in the movant's favor (see W.T. Grant Co. v. Srogi, 52 N.Y.2d 496, 517, 438 N.Y.S.2d 761, 420 N.E.2d 953;  Albini v. Solork Assoc., 37 A.D.2d 835, 326 N.Y.S.2d 150).   Here, the plaintiff failed to establish that he was likely to succeed on the merits and thus he failed to demonstrate a clear right to preliminary injunctive relief (see Popack v. Rice, 261 A.D.2d 463, 687 N.Y.S.2d 297).

A notice of pendency is valid for three years from the date of filing and may be extended for additional three-year periods upon a showing of good cause (see CPLR 6513;  Matter of Sakow, 97 N.Y.2d 436, 442, 741 N.Y.S.2d 175, 767 N.E.2d 666).   The plaintiff failed to establish good cause.   The plaintiff's failure to submit records to the defendants in discovery in defiance of a court order was the cause of the delay that necessitated an extension of the notice of pendency (see Hall v. Piazza, 260 A.D.2d 350, 687 N.Y.S.2d 664;   Pontas Renovation v. Kitano Arms Corp., 224 A.D.2d 349, 349-350, 638 N.Y.S.2d 64;  Harlow Restoration Corp. v. New York Tel. Co., 217 A.D.2d 405, 628 N.Y.S.2d 703).

Accordingly, the Supreme Court providently denied the plaintiff's motions for a preliminary injunction and an extension of the notice of pendency.