84 85 GARDENS OWNERS CORP v. 84 12 AVENUE APARTMENT CORP

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84–85 GARDENS OWNERS CORP., respondent, v. 84–12 35th AVENUE APARTMENT CORP., appellant.

Decided: January 17, 2012

THOMAS A. DICKERSON, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ. Braverman & Associates, P.C., New York, N.Y. (Andreas E. Theodosiou and Tracy Peterson of counsel), for appellant. Michael B. Kramer, New York, N.Y. (Rubin Jay Ginsberg and Morgan Downer of counsel), for respondent.

In an action, inter alia, to permanently enjoin the defendant from trespassing on the plaintiff's property, the defendant appeals from an order of the Supreme Court, Queens County (Pineda–Kirwan, J.), entered June 8, 2011, which granted the plaintiff's motion for a preliminary injunction enjoining the defendant and its officers, agents, directors, contractors, and licensees from, among other things, “entering into or utilizing” the subject property during the pendency of the action, and set an undertaking in the sum of only $25,000 pursuant to CPLR 6312(b).

ORDERED that the order is affirmed, with costs.

To obtain a preliminary injunction, a movant must demonstrate, by clear and convincing evidence, (1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) a balancing of the equities in the movant's favor (see CPLR 6301; Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 862, 552 N.Y.S.2d 918, 552 N.E.2d 166; Arcamone–Makinano v. Britton Prop., Inc., 83 A.D.3d 623, 624, 920 N.Y.S.2d 362). The decision whether to grant or deny a preliminary injunction rests in the sound discretion of the Supreme Court (see Doe v. Axelrod, 73 N.Y.2d 748, 750, 536 N.Y.S.2d 44, 532 N.E.2d 1272; Rowland v. Dushin, 82 A.D.3d 738, 739, 917 N.Y.S.2d 702).

Here, the plaintiff demonstrated a likelihood of success on the merits on its trespass and private nuisance causes of action (see Poughkeepsie Gas Co. v. Citizens' Gas Co., 89 N.Y. 493; Arcamone–Makinano v. Britton Prop., Inc., 83 A.D.3d at 624, 920 N.Y.S.2d 362; 61 W. 62 Owners Corp. v. CGM EMP LLC, 77 A.D.3d 330, 906 N.Y.S.2d 549, mod 16 N.Y.3d 822, 921 N.Y.S.2d 184, 946 N.E.2d 172). The plaintiff also demonstrated the prospect of irreparable injury if the preliminary injunction was withheld (see Arcamone–Makinano v. Britton Prop., Inc., 83 A.D.3d at 624, 920 N.Y.S.2d 362). Furthermore, the balance of the equities tipped in the plaintiff's favor.

Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiff's motion for a preliminary injunction and enjoining the defendant and its officers, agents, directors, contractors, and licensees from, among other things, “entering into or utilizing” the subject property during the pendency of the action. Contrary to the defendant's contention, any factual question raised as to the true ownership of the subject property was not, under the circumstances of this case, a sufficient reason to deny the motion for a preliminary injunction (see S.P.Q.R. Co., Inc. v. United Rockland Stairs, Inc., 57 AD3d 642).

CPLR 6312(b) directs the court to fix an undertaking in an amount that will compensate the defendant for damages incurred “by reason of the injunction,” in the event it is determined that the plaintiff was not entitled to the injunction (CPLR 6312[b]; Clover St. Assoc. v. Nilsson, 244 A.D.2d 312, 313, 665 N.Y.S.2d 537 [internal quotation marks omitted] ). The fixing of the amount of an undertaking is a matter within the sound discretion of the Supreme Court, and its determination will not be disturbed absent an improvident exercise of that discretion (see Ujueta v. Euro–Quest Corp., 29 A.D.3d 895, 896, 814 N.Y.S.2d 551).

Here, the Supreme Court providently exercised its discretion in directing the plaintiff to post an undertaking in the sum of only $25,000, as this amount was rationally related to the amount of potential damages the defendant established that it might sustain (see id. at 896, 814 N.Y.S.2d 551; Blueberries Gourmet v. Aris Realty Corp., 255 A.D.2d 348, 350, 680 N.Y.S.2d 557; Clover St. Assoc. v. Nilsson, 244 A.D.2d at 313).

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