Judlau Contracting, Inc., Plaintiff, v. THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION (2026)

In this action, plaintiff JUDLAU CONTRACTING, INC. moves, by order to show cause (motion sequence number 03), pursuant to CPLR § 6301, for a preliminary injunction enjoining defendants THE CITY OF NEW YORK and THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION from holding a hearing to determine if plaintiff defaulted under their contract. Defendants oppose the motion.

For the reasons set forth below, the temporary restraining order issued on April 27, 2026 (see New York State Court Electronic Filing System [NYSCEF] Doc. No. 75), is vacated and the order to show cause (mot. seq. no. 03) is denied.

BACKGROUND

On January 24, 2018, defendant THE CITY OF NEW YORK (the City), acting through defendant THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION (the DOT), published a proposal seeking bids for Contract No. HBM1165, a "rehabilitation" of the Riverside Drive Viaduct, an elevated roadway spanning from West 158th Street through West 161st Street, New York, New York (project premises) (see NYSCEF Doc. No. 02, complaint, dated June 27, 2025, ¶¶ 15, 1).¹

Plaintiff JUDLAU CONTRACTING, INC. (Contractor) submitted a public bid for the Contract on March 23, 2018 (see id. at ¶ 18). On June 01, 2018, the City of New York selected Contractor's bid and awarded it the contract (the Contract) in the amount of $101,415,091.20 (see id. at ¶ 19). The DOT issued its Notice to Proceed, effective December 27, 2018, and set a completion date of June 27, 2022 (see id. at ¶¶ 20-21).

The DOT subsequently approved three requests from Contractor for an extension of the completion date, the last of which set the completion date to August 16, 2025 (see id. at ¶ 25).

Work on the project was divided into three stages (see id. at ¶ 25). The parties do not dispute that Contractor timely completed stages one and two of the project (see id. at ¶ 27). Contractor avers that it could not complete work on "Stage 3A" because of existing "sidewalk sheds . . . along Riverside Drive at 161st Street and 155th Street" which "block[ed] Contractor's access to a substantial portion of the work site" (id. at ¶¶ 29-30). However, sidewalk sheds did not prevent Contractor from completing the portion of stage 3 work located on the North side of 155th Street (see id.)

While completing the work on stage three out of sequence, Contractor contends that it "repeatedly raised the issue of the sidewalk sheds at bi-weekly meetings and monthly progress meetings with [defendant] NYCDOT [New York City Department of Transportation] since at least 2023" (id. at ¶ 32). Contractor also states that it "repeatedly requested that NYCDOT remove the sidewalk sheds or provide estimated dates for the removal of the sidewalk sheds so that [Contractor] can complete the remaining work" (id. at ¶ 33).

On or about July 10, 2024, Contractor completed that portion of stage 3 but could not begin work on the remainder of stage 3 because the storage sheds remained (see id. at ¶ 30). Contractor does not allege that it informed the DOT of the delay in completing Stage 3A within 15 days as required by Article 11 of the Contract (see NYSCEF Doc. No. 37, Contract, Part H — General Conditions, Article 11 [Notice of Conditions Causing Delay and Documentation of Damages Caused by Delay]).

It is unclear when the DOT became aware that the Contractor had ceased work, but, on November 22, 2024, the DOT issued a "Field Change Sheet" which notified Contractor that the remaining work, which Contractor purported to be unable to complete, would be omitted from the Contract's scope of work. (see NYSCEF Doc. No. 50, letter from DOT Commissioner to Contractor, dated November 22, 2024 [relying on articles 29 and 33 of the Contract]; see also NYSCEF Doc. No. 62, affirmation of urgency of Contractor's counsel, ¶ 30-31  ² ]). In the same letter, the DOT Commissioner attached details and drawings of the scope of the omitted work items and requested Contractor to "[p]lease review the attachment and provide [Contractor's] estimate for review and acceptance by [defendant] NYCDOT" which would then be used to determine a "corresponding reduction in Contract price" (see NYSCEF Doc. No. 50, letter from DOT Commissioner to Contractor, dated November 22, 2024).

Contractor did not respond until June 24, 2025, seven months later. Rather than reviewing the DOT's proposed changes to the scope of work, Contractor appears to demand an additional payment of over $40,000,000.00 dollars in addition to the Contract price to complete the remainder of the work (see NYSCEF Doc. No. 24, response letter from Contractor to DOT Commissioner, dated June 24, 2025 ["provid[ing] the following lump sum price for [DOT's] review and acceptance: . . . $40,655,748.13"]).

Thereafter, DOT Commissioner responded to the letter, rejecting the cost, stating: "We are in receipt of your June 24, 2025, letter responding to NYCDOT November 22, 2024, Article 29 package" (NYSCEF Doc. No. 25, letter from DOT Commissioner to Contractor, dated July 02, 2025). The DOT Commissioner requested therein:

"Please provide [Contractor's] estimate for review and acceptance by NYCDOT as soon as possible to avoid further delays to the contract and let us know if you still intend to submit the details (a summary, estimate, proof of purchase) of materials pursuant to Article 29"

(id. at p 2; see also NYSCEF Doc. No. 37, Contract, Part H — General Conditions, Article 29 [Omitted Work]).

Contractor did not initially respond to the DOT's letter. Instead, on July 2, 2025, Contractor filed the instant plenary action against the City and the DOT, setting forth causes of action for (1) recission of the Contract; (2) quantum meruit; and (3) breach of contract (see NYSCEF Doc. No. 02, complaint). Contractor demands approximately $40 million in damages (see id.).

On September 9, 2025, Defendants filed an answer and asserted counterclaims for breach of contract, which was amended on December 8, 2025 (see NYSCEF Doc. No. 32, amended answer with counterclaim, dated December 08, 2025).³ Contractor filed a motion to dismiss the amended counterclaims which was fully briefed as of March 12, 2026, and remains pending before this Court.

Separately from this plenary action, on April 20, 2026, the DOT began its own administrative process of finding Contractor in default of its contractual obligations by serving Contractor with a "Notice of Opportunity to be Heard" at a hearing "pursuant to Contract Article [48] [of the Contract] for failing to meaningfully progress contract work for over a year and refusing to return to the site with a sufficient workforce to complete the project, despite work being available and despite directives from" the DOT (NYSCEF Doc. No. 63, Notice of Opportunity to be Heard, dated April 20, 2026 [emphasis added]).

The parties' Contract provides that, if the DOT Commissioner issues a default determination against Contractor, the determination is subject to a CPLR Article 78 challenge; however, the Commissioner's determination of default "shall preclude the Contractor from commencing a plenary action for any damages relating to the Contract" (NYSCEF Doc. No. 37, Contract, Part H — General Conditions, Article 49.2 [Exercise of the Right to Declare Default] [emphasis added]).

Contractor now moves, by order to show cause (motion sequence number 03), pursuant to CPLR § 6301, for a preliminary injunction enjoining the DOT Commissioner from holding a hearing on default, pursuant to the terms of their Contract (see NYSCEF Doc. No. 66, order to show cause, dated April 23, 2026). Contractor also requests a temporary restraining order, prohibiting the DOT Commissioner from declaring Contractor in default pending a hearing on this order to show cause (see id.).⁴

Contractor appears to propound, absent a temporary restraining order and preliminary injunction, that the DOT Commission will certainly find Contractor in default, mooting this plenary action to the extent that Contractor asserts a cause of action for recission. As a result of this presumed certainty, Contractor contends that "[s]ignificant harm will inhere to [it]"⁵ (NYSCEF Doc. No. 62, affirmation of urgency by Contractor's counsel, ¶ 58). City opposes the motion entirely.

Next, Contractor argues that, even though it may commence a CPLR Article 78 proceeding to challenge a default determination, if any, the challenge "could result in a different outcome than a plenary action, given the discretion accorded to municipal decisionmakers in those proceedings" (NYSCEF Doc. No. 80, Contractor's supplemental briefing in support of its motion for a preliminary injunction, p 14). Further, Contractor essentially argues -- without presenting governing authority or pinpointing applicable waiver language within the parties' Contract -- that the DOT waived its right to hold a hearing. Contractor reasons that waiver should be implied as the City of New York and the DOT submitted an answer and counterclaims to Contractor's plenary action (id. at p 15).

The City of New York and the DOT argue that an injunction is inappropriate here as (1) Contractor has an adequate remedy at law in an CPLR Article 78 proceeding to challenge a default determination, if any; and (2) any potential injuries to Contractor do not constitute irreparable harm, because they are compensable through money damages (see NYSCEF Doc. No. 81, City's supplemental memorandum of law).

The Court held oral arguments on April 27, 2026, and requested supplemental briefing on two issues: (1) whether there is an adequate remedy at law for Contractor; and (2) whether the DOT Commissioner's determination, if any, that Contractor defaulted on the Contract requires dismissal of this plenary action against the City of New York and the DOT (see NYSCEF Doc. No. 75, interim decision and order, dated April 27, 2026; see also NYSCEF Doc. No. 79, transcript of April 27, 2026 proceedings).

ANALYSIS

"The decision to grant or deny provisional [injunctive] relief . . . requires the court to weigh a variety of factors" and, ordinarily, is a matter left "to the sound discretion of the lower courts" (Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]). Such relief should be issued cautiously, as preliminary injunctions "prevent the litigants from taking actions that they are otherwise legally entitled to take in advance of an adjudication on the merits" (Uniformed Firefighters Ass'n of Greater New York v New York, 79 NY2d 236, 241 [1992] [emphasis in original]; see also Putter v City of New York, 27 AD3d 250, 253 [1st Dept 2006] [quoting the same]).

Further, "[a] court evaluating a motion for a preliminary injunction must be mindful that [t]he purpose of a preliminary injunction is to maintain the status quo, not to determine the ultimate rights of the parties" (Shake Shack Fulton St. Brooklyn, LLC v Allied Prop. Group, LLC, 177 AD3d 924, 927 [2d Dept 2019] [quotations and citations omitted]).

Preliminary "injunctive relief is a drastic remedy which will not be granted unless a clear right thereto is established under the law" (Bilgrei v North Shore Tower Apts., Inc., 228 AD3d 814, 814-815 [2d Dept 2024] [quotations and citations omitted]; see also Goldstone v Gracie Terrace Apt. Corp., 110 AD3d 101, 104-105 [1st Dept 2013]). The burden of demonstrating that right is on the movant seeking injunctive relief (see Doe v Axelrod, 73 NY2d 748 [1988]).

To demonstrate entitlement, a party must make a clear showing of (1) a probability of success on the merits, (2) danger of irreparable injury in the absence of an injunction and (3) a balance of equities in its favor (see Nobu Next Door, LLC, 4 NY3d at 840, citing CPLR § 6301  ⁶ , and Axelrod, supra; see also Goldstone, 110 AD3d at 104-105).

When assessing the likelihood of success, the court's "threshold inquiry is whether the movant has presented evidence to establish a reasonable probability of prevailing in the underlying action" (199 Spring LLC v 119 Spring St. Co., 2013 NY Slip Op 33014[U], *9-10 [Sup Ct NY Cnty 2013] [Eileen Bransten, J.S.C.], quoting 1234 Broadway LLC v West Side SRO Law Project, 86 AD3d 18, 23 [1st Dept 2011]). " 'Conclusory statements lacking factual evidentiary detail warrant denial of a motion seeking a preliminary injunction' " (id.).

"A prima facie showing of a reasonable probability of success is sufficient", as the standard does not require actual proof of the claims (Barbes Rest. Inc. v ASRR Suzer 218, LLC, 140 AD3d 430, 431 [1st Dept 2016], quoting Weissman v Kubasek, 112 AD2d 1086, 1086 [2d Dept 1985]). Further, "[a] likelihood of success on the merits may be sufficiently established even where the facts are in dispute" (Id., citing Four Times Sq. Assoc. v Cigna Invs., 306 AD2d 4, 5 [1st Dept 2003]).

To establish "irreparable harm", the movant must demonstrate the injury is "imminent, not remote or speculative" (Family-Friendly Media, Inc. v Recorder Tel. Network, 74 AD3d 738, 739 [2d Dept 2010] quoting Golden v Steam Heat, 216 AD2d 440, 442 [2d Dept 1995]; see also Matter of Bolofsky v City of New York, 205 AD3d 515, 515 [1st Dept 2022], [relying on Family-Friendly Media, Inc., supra, 74 AD3d at 739, to hold that "[t]he harm asserted — the potential for towing or immobilization of vehicles that could cause delays in shipping goods and could result in damages to reputation and goodwill — is speculative" and, therefore, not qualifying as irreparable]).

Further, "[d]amages compensable in money and capable of calculation," are not irreparable and therefore do not warrant injunctive relief (Chiagkouris v 201 W. 16 Owners Corp., 150 AD3d 442, 442 [1st Dept 2017]; see generally Greater Miami Baseball Club Ltd. Partnership v National League of Professional Baseball Clubs, 193 AD2d 513 [1st Dept 1993] ["monetary harm, which can be compensated by damages, does not constitute irreparable injury for which injunctive relief will be granted"]).

Applying these principles here, the Court concludes that Contractor has not satisfied its burden of establishing entitlement to a preliminary injunction.

First, Contractor has not demonstrated a likelihood of success on the merits of its rescission, quantum meruit, or breach of contract claims. As the likelihood-of-success inquiry depends on the standards applicable to the underlying causes of action, the Court addresses each claim in turn below.

"[R]ecission is a matter of discretion, and is an equitable remedy [ ] 'invoked only when there is lacking complete and adequate remedy at law and where the status quo may be substantially restored' "; rescission does not lie where the proponent "seeks monetary damages for its breach of contract claim" (Lantau Holdings Ltd. v General Pac. Group Ltd., 163 AD3d 407, 409 [1st Dept 2018] [emphasis added]).

"[This cause of action] is permitted for [among other things not alleged here] . . . breache[s] [of contract] that are material and willful, or, if not willful, so substantial and fundamental as to strongly tend to defeat the object of the parties in making the contract"

(Callanan v Keeseville, Ausable Chasm & Lake Champlain R.R. Co., 199 NY 268, 284 [1910]).

"Generally, a party cannot rescind a contract if that would injure the party against whom rescission is sought because, under the contract, that party has changed his position and cannot be returned to the status quo ante" (Sokolow v Lacher, 299 AD2d 64, 71 [1st Dept 2002], citing Gravenhorst v Zimmerman, 236 NY 22, 34-35 [1923]; Kamerman v Curtis, 285 NY 221, 226 [1941]). For example, the First Department has held "plaintiffs would not have a right to rescind [if] the nature of the transaction, i.e., the installation of facilities integrated into and designed for a particular building, does not lend itself to a substantial restoration to the status quo ante of the breaching contractor" (Tarleton Bldg. Corp. v Spider Staging Sales Co., 26 AD2d 809, 809 [1st Dept 1966]). The Court of Appeals has also held that a plaintiff is not entitled to rescission where monetary damages appear adequate and it is "impracticable to restore" the status quo ante (Rudman v Cowles Communications, Inc., 30 NY2d 1, 13-14 [1972] [there, pursuant to the Contract that the plaintiff sought to rescind, the assimilation of the plaintiff's company was complete]).

Here, the parties are years into their contract for rehabilitation of a public roadway, and much progress has been made, pursuant to the transaction. Indeed, it is undisputed that Contractor completed stages one and two of the project and partially completed the work required for stage three, which appears to be the final or near final stage of the project. Therefore, this action does not appear to lend itself to the possibility of substantial restoration to the status quo as contemplated by the equitable doctrine of rescission (see generally Tarleton Bldg. Corp., 26 AD2d at 809).

Moreover, Contractor fails to propound what, if any, relief other than monetary compensation would be adequate recompence for its alleged injuries. Consequently, Contractor does not establish a clear probability of success on this cause of action.

Contractor's next claim is the quasi-contract remedy of quantum meruit. "A 'quasi contract' only applies in the absence of an express agreement, and is not really a contract at all, but rather a legal obligation imposed in order to prevent a party's unjust enrichment" (Clark-Fitzpatrick, Inc. v. Long Island R. Co., 70 NY2d 382, 388 [1987)[citations omitted]). "It is impermissible . . . to seek damages in an action sounding in quasi contract where the suing party has fully performed on a valid written agreement, the existence of which is undisputed, and the scope of which clearly covers the dispute between the parties" (id. at 389).

"The elements of a cause of action sounding in quantum meruit are (1) performance of services in good faith, (2) acceptance of services by the person to whom they are rendered, (3) expectation of compensation therefor, and (4) reasonable value of the services rendered" (Grey's Woodworks, Inc. v Witte, 173 AD3d 1322, 1324 [3d Dept 2019]; see also Soumayah v Minneli, 41 AD3d 390, 391 [1st 2007]). However, a quantum meruit claim cannot proceed in the face of a valid, enforceable contractual agreement between the parties (see, e.g. IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142 [1st Dept 2009] ["Where the parties executed a valid and enforceable written contract governing a particular subject matter, recovery on a theory of unjust enrichment for an event arising out of that subject matter is ordinarily precluded"]).

Here, it is undisputed that the parties performed pursuant to a valid written agreement, the scope of which clearly covers the instant dispute.

Further, Contractor's quantum meruit cause of action is premised on the success of its rescission claim -- Contractor pleads no independent basis upon which the contract may be deemed void or unenforceable (see generally NYSCEF Doc. No. 02, complaint). "[W]here rescission of a contract is warranted, a party may timely rescind and seek recovery on the theory of quasi contract" (Clark-Fitzpatrick, 70 NY2d at 389, citing Soviero Bros. Contr. Corp. v City of New York, 286 AD 435 [1st Dept 1955]). However, "[w]ithout in some manner removing the express contract from the picture in the normal fashion (rescission, abandonment, etc.) it is not possible to ignore it and proceed in quantum meruit" (Unisys Corp. v Hercules Inc., 224 AD2d 365, 367 [1st Dept 1996]).

As Contractor failed to establish a clear probability of success on its rescission claim, the contract has not been "remove[d] . . . from the picture" and the parties' express agreement continues to govern the instant dispute (Unisys Corp., 224 AD2d at 367).

Contractor's final cause of action is breach of contract. "A cause of action for breach of contract requires that plaintiff show the existence of a contract, the performance of its obligations under the contract, the failure of defendant to perform its obligations and damages resulting from defendant's breach" (Bank of Am., N.A. v Neroni, 226 AD3d 1273, 1275 [3d Dept 2024] [citation omitted]).

Here, no dispute exists that the parties entered into a valid contract following a public bid process. However, Contractor's allegations regarding its own performance and defendants' alleged failure to fulfill their obligations under the contract are conclusory and lack any evidentiary support. Moreover, there are gaps in the proof supporting its prima facie case, and questions concerning the provisions in the Contract which address notice of damages and the process for seeking damages in the event of such delays (see NYSCEF Doc. No. 37, Contract, Part H — General Conditions, Article 11 [Notice of Conditions Causing Delay and Documentation of Damages Caused by Delay]; see also id. at Article 56 [Claims and Actions Thereon]).

For the reasons stated, supra, because Contractor has not established a reasonable probability of success on the merits, the motion should be denied on that basis alone (Cushing v Sanford Equities Corp., 223 AD3d 870, 871 [2d Dept 2024] [affirming trial court's denial of injunction against eviction (holdover) proceeding based on plaintiffs' failure to demonstrate likelihood of success on the merits]).

Even assuming, arguendo, that Contractor did establish some possibility of success on the merits of its claims, the motion should still fail because Contractor does not carry its burden to establish either of the other elements.

It is well-established that "[d]amages compensable in money and capable of calculation are not irreparable" for purposes of requiring injunctive relief (J.S.I.K. Intl. LLC v Schuster, 225 AD3d 472, 473 [1st Dept 2024] [internal quotations omitted]; accord Montgomery v 215 Chrystie LLC, 209 AD3d 587, 587 [1st Dept 2022]; CWCapital Cobalt VR Ltd. v CWCapital Invs. LLC, 168 AD3d 567, 568 [1st Dept 2019]). Further, "injunctive relief will not lie where there is an adequate remedy at law in a proceeding under CPLR article 78" (see Benjamin Kurzban & Son, Inc. v Board of Educ., 129 AD2d 756, 757 [1st Dept 1987]).

As stated, supra, not only does Contractor not propound any relief other than money damages, but it goes so far as to also quantify them. To the extent Contractor would be "harmed" by the DOT's administrative proceeding, an adequate relief at law exists in the form of an Article 78 proceeding.

While Contractor expresses frustration that -- "even if it d[oes] have an adequate remedy in an Article 78 proceeding, [Contractor] should not be required to start from scratch when it filed timely and appropriate plenary claims" (NYSCEF Doc. No. 62, affirmation of urgency of contractor's counsel, ¶ 70) —- this is a presumption, not a fact. Notably, Contractor also expresses a belief that, if the DOT Commissioner, upon a hearing, finds Contractor in default, this plenary action must be dismissed.

These positions appear based on Article 49 of the parties' contract. Article 49.2 provides:

"The Commissioner's determination that the Contractor is in default shall be conclusive, final, and binding on the parties and such a finding shall preclude the Contractor from commencing a plenary action for any damages relating to the Contract [but not preclude Contractor from commencing a CPLR article 78 proceeding to challenge the Commissioner's determination of default, if any]"

(NYSCEF Doc. No. 37, Contract, Part H — General Conditions, Article 49 [Exercise of the Right to Declare Default]).

A plain reading of this language does not prohibit Contractor from maintaining an already pending plenary action for damages. Indeed, "[w]here the terms of a contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving a practical interpretation to the language employed and reading the contract as a whole" (Ellington v EMI Music, Inc., 24 NY3d 239, 244 [2014] [citations omitted]). "The words and phrases used by the parties must, as in all cases involving contract interpretation, be given their plain meaning" (id.). "Commence" means "to enter upon: BEGIN" ("Commence." Merriam-Webster.com Dictionary, Merriam-Webster).

The bigger hurdle for Contractor appears to be if it waived a plenary action for damages, pursuant to the terms of the parties' contract (see NYSCEF Doc. No. 37, Contract, Part H, General Conditions, Article 11.2).

Finally, the Court does not find that the equities favor granting an injunction. An injunction prohibiting the DOT Commissioner from holding a hearing, pursuant to the parties' written agreement, pending a determination in this plenary action, does not preserve the status quo. Rather, it alters it by preventing the bargained for procedural mechanism through which the parties agreed the Commissioner may decide if Contractor defaulted on the contract. Further, as discussed previously, the hearing or a finding that Contractor defaulted does not leave Contractor without remedy through a CPLR article 78 proceeding (see Benjamin Kurzban & Son, Inc. v Bd. of Educ., 129 AD2d 756, 757 [2d Dept 1987] [balance of equities not in favor of contractor who averred he would "go out of business" if found in default of contractual obligations at administrative hearing]).

Accordingly, it is

ORDERED that plaintiff's motion, by order to show cause (mot. seq. no. 03), for a preliminary injunction is denied entirely; it is further

ORDERED that the temporary restraining order issued by this Court on April 27, 2026, is vacated in its entirety; it is further

ORDERED that, within twenty days from the date of this decision and order, plaintiff JUDLAU CONTRACTING, INC. shall serve a copy of this order, with notice of entry, upon defendants THE CITY OF NEW YORK and THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, as well as on the Clerk of the Court, who shall enter judgment accordingly; and it is further

ORDERED that the Clerk of Court shall mark the file accordingly.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

DATE July 28, 2026

EMILY MORALES-MINERVA, J.S.C.

FOOTNOTES

1.   The scope of work in the Contract included, among other things, the replacement of the bridge deck, sidewalks and expansion joints; repair of deteriorated steel elements; and restoration of the historic granite parapets and street lighting (see id. at ¶ 16; see also NYSCEF Doc. No. 38, attachment 3i to the Contract, S-pages Special Provisions, p S-7).

2.   Article 33 provides, among other things, the Commissioner "shall have the power: . . . [t]o suspend in the whole or any part of the Work whenever in his/her judgment such suspicion is required: 33.1.3 (a) In the interest of the City generally; or . . . 33.1.3 (c) To expedite the completion of the entire Project even though completion of this particular Contract may thereby by delayed" (NYSCEF Doc. No. 37, Contract, Part H — General Conditions, Article 33 [Commissioner];see also id. at Article 29, governing omitted work and calculation of contract pricing when the contract work is omitted by the Commissioner]).

3.   City originally answered and counterclaimed on September 29, 2025, and Contractor filed a motion to dismiss (seq. no. 01). Pursuant to a stipulation, Contractor withdrew its motion to dismiss, and City filed an amended answer with counterclaim on December 08, 2025, which is the operative pleading herein (see NYSCEF Doc. No. 31, stipulation, dated October 22, 2025).

4.   While Contractor phrases its request as seeking to prohibit the DOT Commissioner from finding it in default, the Court deems the application as one prohibiting the hearing, as this Court has no apparent authority to direct the Commissioner to determine the opposite or to direct the Commissioner on how to exercise its discretion once a hearing is held. The proper procedure is to challenge an adverse ruling through a CPLR Article 78 proceeding.

5.   "Even if it [Contractor] did have an adequate remedy in an Article 78 proceeding, [Contractor] should not be required to start from scratch when it filed timely and appropriate plenary claims . . . ." (id. at ¶ 70).

6.   CPLR § 6301 provides: "A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff."

Emily Morales-Minerva, J.