COOPER v. BOARD OF WHITE SANDS CONDOMINIUM (2011)

In an action, inter alia, to recover damages for breach of fiduciary duty, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Galasso, J.), dated August 24, 2010, as denied their motion for a preliminary injunction.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiffs are owners of a condominium unit located in the White Sands Condominium, while the individual defendants are members of the condominium board.   The plaintiffs moved for a preliminary injunction compelling the board to repair the exterior walls, a common element of the condominium, alleged to be the source of flooding in the plaintiffs' unit, compelling the removal of certain liens, and enjoining the board from assessing and collecting common charges from the plaintiffs so long as their unit was wholly or partially unusable.

 The decision to grant or deny a preliminary injunction rests in the sound discretion of the Supreme Court (see Tatum v. Newell Funding, LLC, 63 A.D.3d 911, 880 N.Y.S.2d 542).   Where the movant does not demonstrate a likelihood of success on the merits, irreparable damage, and a balance of the equities in his or her favor, the motion should not be granted (see Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 840, 800 N.Y.S.2d 48, 833 N.E.2d 191;  Blinds & Carpet Gallery, Inc. v. E.E.M. Realty, Inc., 82 A.D.3d 691, 917 N.Y.S.2d 680;  Alexandru v. Pappas, 68 A.D.3d 690, 890 N.Y.S.2d 593;  Apa Sec., Inc. v. Apa, 37 A.D.3d 502, 831 N.Y.S.2d 201;  Rattner & Assoc. v. Sears, Roebuck & Co., 294 A.D.2d 346, 741 N.Y.S.2d 894).  “While the existence of issues of fact alone will not justify denial of a motion for a preliminary injunction, the motion should not be granted where there are issues that subvert the plaintiff's likelihood of success on the merits ․ to such a degree that it cannot be said that the plaintiff established a clear right to relief” (Advanced Digital Sec. Solutions v. Samsung Techwin Co., 53 A.D.3d 612, 613, 862 N.Y.S.2d 551).

Here, the plaintiffs failed to demonstrate their entitlement to the drastic remedy of a preliminary injunction.   Since the source of the alleged flooding is in such sharp dispute, thereby subverting the plaintiffs' likelihood of success on the merits, “it cannot be said that the plaintiff[s] established a clear right” to preliminary injunctive relief (Milbrandt & Co. v. Griffin, 1 A.D.3d 327, 328, 766 N.Y.S.2d 588).   In addition, the plaintiffs failed to demonstrate that they would suffer irreparable damage if the injunction was not granted (see Blinds & Carpet Gallery, Inc. v. E.E.M. Realty, Inc., 82 A.D.3d 691, 917 N.Y.S.2d 680).

The plaintiffs' remaining contentions are without merit or have been rendered academic.

Accordingly, the Supreme Court properly denied the plaintiffs' motion for a preliminary injunction.