This evaluation supported the use of SVE for the cleanup. LMS
then submitted a revised Work Plan for the Site, and began
installing the SVE system on October 5, 2000. Once the system is
installed, HRC will be able to reseal the floor and sublease the
building to a new tenant.
DEC has continuously monitored the clean-up, and LMS advised
the agency of the new contamination and of its proposal for
remediation. In an October 16 letter, the DEC concurred with the
LMS evaluation that SVE had been proven effective in many similar
applications, and "approves in concept SVE as capable of
achieving or exceeding the cleanup goals in the originally
approved May 2000 remedial work plan." (Williams Aff. at Exh. C.)
The DEC said it would review the LMS reports with the Department
of Health and would comment on "the details of the SVE system."
It added that "[o]peration, maintenance and monitoring protocols
are of concern as well as endpoint sampling of soil, soil gas and
ambient air to confirm that remedial goals have been met under
the [voluntary cooperation agreement]." (Id.) The LMS project
supervisor claims that LMS will "await DEC's specific comments
prior to replacing the concrete floor slab and completing
installation of the SVE system." (Pease Aff. ¶ 18.)
At this time defendants cannot estimate how long the system
will need to operate to reach its goals. It may take as few as
six and as many as seventy months or more for the system to reach
the DEC cleanup objectives. If plaintiff wishes, defendant plans
to remove the system upon completion of the cleanup.
On Friday, October 13, plaintiff moved by order to show cause
for a mandatory preliminary injunction ordering "HRC to take all
steps necessary until further order of this Court to fully
remediate the hazardous substance contamination at the Site and
at neighboring properties to which contamination from the Site
has migrated, to ensure that it ceases to present a risk to the
public health and the environment." (Pl.Rep.Mem. at 2-3.) The
Court entered a temporary restraining order and scheduled a
hearing for October 19.
At the hearing on the TRO application, plaintiff sought to
enjoin installation of the SVE system and to compel HRC to
excavate every centimeter of contaminated soil. At the hearing on
the motion, without abandoning its prior request, plaintiff asked
"at a minimum" for a mandatory injunction directing HRC to
investigate whether there is any groundwater or bedrock
contamination, and if so, to remedy the same. Christie also seeks
to enjoin HRC from completing installation of the SVE system,
sealing the floor, and leasing the Site to a new subtenant.
Plaintiff argues that the injunction is warranted on two
grounds. First, it contends that allowing HRC to go forward poses
an imminent and substantial danger to the public health and the
environment, because HRC's cleanup plan does not include
investigation or remediation of possible bedrock or groundwater
contamination. Second, plaintiff argues that HRC's installation
of the SVE system violates its ground lease from Christie.
CONCLUSIONS OF LAW
I. Standards for Preliminary Injunction
The award of a preliminary injunction is an extraordinary and
drastic remedy that will not be granted absent a clear showing
that the plaintiff has met its burden of proof. See Hanson Trust
PLC v. SCM Corp., 774 F.2d 47, 60 (2d Cir. 1985); Beech-Nut,
Inc. v. Warner-Lambert Co., 480 F.2d 801, 803 (2d Cir. 1973);
Kraft General Foods, Inc. v. Allied Old English, Inc.,
831 F. Supp. 123, 127 (S.D.N.Y. 1993). A party seeking a preliminary
injunction must demonstrate (1) that it will be irreparably
harmed in the absence of an injunction, and (2) either (a) a
likelihood of success on the merits or (b) sufficiently serious
questions going to the
merits of the case to make them a fair ground for litigation, and
a balance of hardships tipping decidedly in its favor. See
Forest City Daly Housing, Inc. v. Town of North Hempstead,
175 F.3d 144, 149 (2d Cir. 1999). Accord Statharos v. New York City
Taxi & Limousine Comm'n, 198 F.3d 317, 321 (2d Cir. 1999);
Genesee Brewing Co., Inc. v. Stroh Brewing Co., 124 F.3d 137,
142 (2d Cir. 1997); Tom Doherty Assocs., Inc. v. Saban
Entertainment, Inc., 60 F.3d 27, 33 (2d Cir. 1995). "Although
this standard does not explicitly mention the public interest . .
. [the Second Circuit] ha[s] recognized that, as a court of
equity, [it] `may go much further both to give or to withhold
relief in furtherance of the public interest than where only
private interests are involved.'" Standard & Poor's Corp., Inc.
v. Commodity Exch., Inc., 683 F.2d 704, 711 (2d Cir. 1982)
(quoting Brown & Williamson Tobacco Corp. v. Engman,
527 F.2d 1115, 1121 (2d Cir. 1975), cert denied, 426 U.S. 911, 96 S.Ct.
2237, 48 L.Ed.2d 837 (1976)); see also United States v. Marine
Shale Processors, 81 F.3d 1329, 1359 (5th Cir. 1996) (observing
the "extraordinary weight courts of equity place upon the public
interests in a suit involving more than a mere private
dispute."). Indeed, there is substantial authority that, when a
case is brought pursuant to an environmental or public health
statute, including RCRA and the CWA, the primary focus shifts
from irreparable harm to concern for the general public interest.
See United States v. Bethlehem Steel Corp., 38 F.3d 862, 868
(7th Cir. 1994); United States Env'l Protection Agency v.
Environmental Waste Control, Inc., 917 F.2d 327, 332 (7th Cir.
1990); Buchholz v. Dayton Int'l Airport, 1995 WL 811897
(S.D.Ohio, Oct.30, 1995). Nonetheless, the burden rests with the
plaintiff to establish that he is entitled to the relief sought.
See Forest City Daly Housing, Inc., 175 F.3d at 149.
The threat of injury must be "actual and imminent," not remote
or speculative, and not easily compensated by monetary damages.
See Forest City Daly Housing, Inc., 175 F.3d at 153 (quoting
Rodriguez v. DeBuono, 162 F.3d 56, 61 (2d Cir. 1998)). The
United States Supreme Court has warned, "environmental injury, by
its nature, can seldom be adequately remedied by money damages
and is often permanent or at least of long duration, i.e.,
irreparable. If such injury is sufficiently likely, therefore,
the balance of harms will usually favor the issuance of an
injunction to protect the environment." Amoco Prod. Co. v.
Village of Gambell, AK, 480 U.S. 531, 545, 107 S.Ct. 1396, 1404,
94 L.Ed.2d 542 (1987) (emphasis added).
Plaintiff is seeking a mandatory injunction. Such relief is
granted sparingly, because mandatory injunctions are more
burdensome than prohibitory injunctions, and disturb the status
quo prior to final adjudication. See Tom Doherty Assocs., 60
F.3d at 33-34. Thus, the Second Circuit has insisted that to
obtain mandatory injunctive relief, a plaintiff must show a clear
and substantial likelihood of success on the merits. See Jolly
v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996). "[A] mandatory
injunction should issue only upon a clear showing that the moving
party is entitled to the relief requested, or where extreme or
very serious damage will result from a denial of preliminary
relief." Tom Doherty Assocs., 60 F.3d at 34 (quoting Abdul
Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985), rev'd on
Plaintiff's complaint contains nine causes of action. Despite
the fact that the parties discuss the likelihood of success on
the merits of all nine claims, only two would arguably support
injunctive relief — the Fourth (For Injunctive Relief and
Restitution Under RCRA, 42 U.S.C. § 6872, Against All
Defendants) and Tenth (Breach of Contract Against the HRC
Defendants). The rest of the claims (including plaintiff's claim
under CERCLA) are simply actions for damages, which, by
definition, do not raise the spectre of irreparable
injury. Accordingly, I will confine the discussion to the
II. Plaintiff's RCRA Claim Does not Merit Injunctive Relief
The Resource Conservation and Recovery Act, or RCRA, is a
comprehensive environmental statute designed to ensure that solid
and hazardous wastes are not disposed of in manners harmful to
the public health or the environment. See 42 U.S.C. § 6902(a).
To accomplish these objectives, RCRA regulates the generation,
handling, treatment, storage, transportation, and disposal of
solid and hazardous wastes. See 42 U.S.C. § 6922-25. This
far-reaching statute establishes what is frequently described as
"cradle to grave" oversight. See Sierra Club v. United States
Dept. of Energy, 770 F. Supp. 578, 579 (D.Colo. 1991).
In an effort to secure enforcement of the Act's provisions to
the fullest extent possible, Congress conferred enforcement power
not only on the EPA or a duly authorized state agency, but also
in certain circumstances on affected United States citizens
themselves. Under the citizen suit provisions of the RCRA, "`any
person' may commence a civil action on his own behalf" either
"against any person . . . who is alleged to be in violation of
any permit, standard, regulation, condition, requirement,
prohibition, or order" effective pursuant to the RCRA,
42 U.S.C. § 6972(a)(1)(A), or "against any person . . . who has contributed
or who is contributing to the past or present handling, storage,
treatment, transportation, or disposal of any solid or hazardous
waste which may present an imminent and substantial endangerment
to health or the environment." 42 U.S.C. § 6972(a)(1)(B).
To prosecute a claim under 42 U.S.C. § 6972(a)(1)(B)
successfully, a RCRA plaintiff must ultimately demonstrate that:
(1) the defendant was or is a generator or
transporter of solid or hazardous waste or owner or
operator of a solid or hazardous waste treatment,
storage or disposal facility, (2) the defendant has
contributed or is contributing to the handling,
storage, treatment, transportation, or disposal of
solid or hazardous waste, as defined by RCRA, and (3)
that the solid or hazardous waste in question may
pose an imminent and substantial endangerment to
health or the environment.
Prisco v. A & D Carting Corp., 168 F.3d 593, 608 (2d Cir.
A plaintiff "need not establish `an incontrovertible "imminent
and substantial" harm to health and the environment'" Orange
Env't, Inc. v. County of Orange, 860 F. Supp. 1003, 1029
(S.D.N.Y. 1994) (quoting Gache v. Harrison, 813 F. Supp. 1037,
1044 (S.D.N.Y. 1993)). As Judge Sweet of this district has said,
"[t]he operative word in section 6972(a)(1)(B) is `may.'" Kara
Holding Corp. v. Getty Petroleum Mktg., Inc., 67 F. Supp.2d 302,
310 (S.D.N.Y. 1999). Furthermore, "imminency" does not
necessarily mean "immediately." The Supreme Court has said that
the language of the RCRA "`implies that there must be a threat
which is present now, although the impact of the threat may not
be felt until later.'" Meghrig v. KFC Western, Inc.,
516 U.S. 479, 486, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996) (quoting Price
v. United States Navy, 39 F.3d 1011, 1019 (9th Cir. 1994)); see
also Dague v. City of Burlington, 935 F.2d 1343, 1355 (2d Cir.
1991), rev'd on other grounds, 505 U.S. 557, 112 S.Ct. 2638,
120 L.Ed.2d 449 (1992);
If the Court finds that an imminent and substantial
endangerment exists, it has broad equitable powers, and may,
"without regard to the amount in controversy or the citizenship
of the parties, . . . restrain any person who has contributed to
the past or present handling, storage, treatment, transportation,
or disposal of the solid or hazardous waste" presenting
the threat to health or the environment. 42 U.S.C. § 6972(a).
Both prohibitory and mandatory injunctions may properly be issued
under this provision. See Meghrig, 516 U.S. at 483-84, 116
S.Ct. 1251 at 1254, 134 L.Ed.2d 121.
Notwithstanding the broad powers of RCRA's citizen suit
provision, the commencement of a RCRA suit does not automatically
warrant entry of an injunction. Only if injury is "sufficiently
likely" will the balance of harm tilt in favor of injunctive
relief. Amoco Prod. Co. v. Village of Gambell, AK,
480 U.S. 531, 545, 107 S.Ct. 1396, 1404, 94 L.Ed.2d 542 (1987). Courts
will not find that an imminent and substantial endangerment
exists "if the risk of harm is remote in time, completely
speculative in nature, or de minimis in degree." United States
v. Reilly Tar & Chem. Corp., 546 F. Supp. 1100, 1109 (D.Minn.
B. Plaintiff is not likely to succeed on the merits of its
Defendants do not dispute that hazardous chemicals were
released at the site, or that HRC and its sub-tenant, Mimi
Cleaners, contributed to the handling, storage, treatment,
transportation, or disposal of solid or hazardous waste, as
defined by RCRA. However, they contend that plaintiffs are not
likely to succeed in proving that the planned cleanup, and the
decision not to investigate the bedrock or groundwater for
contamination at this time, poses an imminent and substantial
endangerment to health or the environment. I agree.
In most cases brought under the RCRA, plaintiffs want to force
site owners and operators to begin a cleanup (or stop dumping
and begin a cleanup). In such cases, courts will look at the
level of environmental damage and the impact of waiting to begin
a cleanup. See Prisco v. State of New York, 902 F. Supp. 374,
394-95 (S.D.N.Y. 1995), Wilson v. Amoco Corp., 989 F. Supp. 1159
(D.Wyo. 1998), Foster v. U.S., 922 F. Supp. 642, 661 (D.D.C.
1996). Here, Christie wants me to declare that the clean-up
mechanism chosen by HRC and approved by the DEC for use at the
Site poses an imminent and substantial danger because it will not
adequately clean the remaining soil, or bedrock or groundwater
contamination, if there is any. I cannot make such a finding
because HRC's installation of an SVE system does not pose a
danger to the environment.
HRC's current plan is to cleanup the soil underneath the Site
and the surrounding areas using SVE. SVE is a DEC approved remedy
for the type of contamination found at this site, especially
given the sandy soil conditions. DEC has approved the use of SVE
in theory for the Site, subject to additional DEC and DOH health
and safety requirements. The SVE system and the overall cleanup
effort will remain subject to continued oversight by DEC and
other regulatory agencies. The agreement between HRC and the DEC
allows for this very possibility. (Savarese Decl. at Exh. D at 4,
6.) If DEC is not satisfied with the results of defendant's SVE
measures, it retains the right to insist on additional measures.
Assuming, arguendo, that further remediation is required,
installation of the SVE system cannot hurt; in fact, it can
The DEC is not currently requiring any additional measures
beyond the SVE, nor have plaintiffs presented any evidence that
further remediation measures are necessary. However, in approving
the use of the SVE system under the Work Plan, the DEC stated
that it "may also require further investigation of impacts to
groundwater quality, including groundwater sampling, toward
fulfillment [sic] of the requirement under the voluntary cleanup
program of exposure assessment for off-site contamination."
(Williams Aff. at Exh. C.) Notwithstanding the "voluntary" nature
of this cleanup, HRC is required to reduce the contamination to
a level that the DEC believes is safe. I have seen no evidence
that HRC is refusing or will refuse to comply with these
the contrary, it is being extraordinarily pro-active and
cooperating fully with state environmental authorities.
Plaintiff's original objective in bringing this action was to
obtain an order directing removal of all contaminated soil under
its building. But there is a very real danger that defendant
cannot further remediate the site by taking out more soil. HRC
has removed 72 tons of soil already. LMS, its engineers, have
opined that another 450 tons might have to be excavated, and have
raised the significant possibility that further excavation will
undermine the foundation of the building or of adjacent buildings
(since some of the soil is likely off site). Plaintiff does not
dispute this with any competent evidence. SVE, by contrast, will
improve the soil conditions over time, not only under the subject
property, but under adjacent streets and buildings as well, by
literally pulling contaminant out of the soil. The fact that the
site will be covered by a concrete slab while the process is
carried out means that no noxious vapors will injure human
Plaintiff argues that, because defendant has "repeatedly
declined" its requests to "investigate and remediate bedrock and
groundwater contamination," it has no assurances HRC will take
such action in the future. (Pl.Rep.Mem at 3-4.) Aside from its
comments to the original voluntary cleanup agreement, Christie
made one written request to HRC on October 5. It did not insist
on an "investigation" of possible bedrock or groundwater
contamination, as claimed at the hearing, but on "a total cleanup
of its property, with no residual contamination," and a "complete
removal of all contaminated soil, bedrock and other material."
(Gerrard Aff. at Exh. E.). That DEC did not incorporate
plaintiff's suggestions into the work plan does not show that
defendant would be unwilling to remediate if there were evidence
of bedrock or groundwater contamination.
At present, there is no such evidence. Plaintiff claims to have
provided ample evidence of likely bedrock and groundwater
contamination, but in fact they offer none at all.
First, Christie says, defendant's engineer noted the
possibility of bedrock infiltration in his first letter to HRC,
when LMS was proposing its services to defendant in July 1999.
But that letter was written before LMS had even examined the
Site. The bedrock could not even be seen. The firm was simply
enumerating for its client the universe of possibilities. (Pease
Tr. at 65-66.) This is not evidence that contamination in fact
Second, plaintiff points to bedrock infiltration and
groundwater contamination in the spill site across the street at
a former Mobil station. They appear to argue that this fact
suggests porous bedrock, and a similar situation under 58
Christie Place. But, as noted above, there are substantial
differences in the two sites. Mobil placed gas storage tanks in
the bedrock — necessitating considerable blasting and disturbing
of the bedrock, given its subsurface level as testified to by Dr.
Pease (See Tr. at 50-51). Moreover, the gasoline was leaking
directly into the bedrock at the Mobil Site. There is no
evidence at all that the bedrock was similarly disturbed at 58
Christie Place (and plaintiff, as owner of the building, could
presumably have produced some evidence if it had been). Visual
inspection of the bedrock by LMS revealed no fissures, and Chazen
(on whose report plaintiff relies extensively) opined that the
bedrock was acting as a barrier to migration of chemicals under
Plaintiff argues that both DEC and HRC have raised the
possibility of future investigations of the bedrock or
groundwater, and notes (correctly) that hairline cracks would not
necessarily be visible to the naked eye. However, DEC has
indicated that it will continue to monitor the clean-up, and may
require bedrock or water testing if it seems appropriate. That
DEC does not see the need for such testing now is powerfully
persuasive to the
Court of the lack of any need for judicial interference.
Plaintiff cites as support Wilson v. Amoco Corp., 989 F. Supp. 1159
(D.Wyo. 1998), where the court issued a mandatory injunction
against some of the defendants. However, that case actually
supports defendant's position.
In Wilson, the court granted an injunction against the Amoco
defendants, in light of clear evidence of massive contamination
and great danger to the public. At the Amoco sites, the court
found "ample documentation of the operating conditions and
practices at the Refinery and Tank Farm," and a "high level of
employee concern" about Refinery infrastructure. Id. at 1164.
There was substantial evidence that contamination had migrated
off-site, into an area three times the size of the Exxon Valdez
oil spill. In addition, the EPA had conducted "little
investigation of any worth" and Amoco's response to regulatory
requests was "inadequate." Id. Finally, there was significant
evidence that contamination was continuing to elude capture by
poorly-functioning wells. See id. at 1176. The court therefore
granted an injunction against Amoco.
Of greater significance for our case, there was another
defendant in Wilson who ran a dry-cleaning facility in the same
town as the Amoco sites. There was evidence in the record that
63,000 to 230,000 gallons of PCE-contaminated water was
discharging each day into the North Platte River. See id.
Plaintiffs also presented evidence by a former employee of the
dry cleaner defendant, who had witnessed PCE flow through a hose
and into a floor drain. This employee observed that the indoor
spills were swept out through the facility doors into the parking
lot. See id. at 1169. Another employee recalled cleaning the
"button trap," a component of the dry cleaning machine through
which PCE flowed, by hosing it off into troughs that flowed into
the sewer. See id. at 1167.
Nonetheless, the Wilson court refused to grant a mandatory
preliminary injunction requiring defendant to contain the
discharges and remediate the contaminated property on the grounds
that it was premature to order the defendant dry cleaner to clean
up the contamination without further evidence of that defendant's
sole responsibility (an engineering and environmental report
identified 17 potential sources of the contamination attributed
by plaintiffs to defendant). See id. at 1180. The court also
In addition to their myriad of causation hurdles,
Plaintiffs face the equally troublesome problem of
demonstrating that the PCE contamination poses an
imminent and substantial endangerment to health and
the environment. The evidence before the court casts
doubts on the plaintiff's assertion that it does.
Id. at 1180-81.
I understand that plaintiff wants defendant to test for bedrock
and groundwater contamination, and that it must only show the
possibility of such contamination. However, plaintiff has not
provided me with any evidence, let alone compelling evidence,
that there is a real possibility of such contamination, such that
immediate testing is necessary and should be ordered pendente
lite. There is no evidence at all about Mimi's operation before
this Court, and they have ceased in any event. This is a radical
difference from Wilson, where there was significant evidence of
ongoing pollution by the dry cleaner. If no injunction issued in
that case, I fail to see how one could be warranted here.
HRC's current remediation plan poses no danger to human health.
Prior to beginning any remedial measures, the level of
contamination was still below EPA ranges for the protection of
human health. As LMS scientist and day-to-day supervisor of this
Site's cleanup Bradley C. Williams, Ph.D., P.E., warns: "whether
contamination is present in bedrock or groundwater is secondary
to the immediate concern that the only potential human exposure
pathway (ambient air) be eliminated."
(Williams Aff. ¶ 22.) The court credits the affirmation of
defendant's expert, Thomas Pease, Ph.D., P.E., that "the existing
PCE contamination does not present a human health threat because
there is no exposure pathway from the contaminated soil to a
receptor, and groundwater is not used as a drinking water supply
in the vicinity of the Site." (Pease Aff. ¶ 19.) Moreover, any
inchoate threat is best eliminated by using SVE rather than by
further disturbance of the soil — which poses some risk of
undermining the structural integrity of the main commercial area
Insofar as the bedrock and groundwater are concerned, it seems
clear, after listening to testimony at the hearing, that at a
minimum the SVE will not harm these strata. It would actually
improve any groundwater above the bedrock (by sucking out the
vapors released by dissolved chemicals as groundwater-dampened
soil dries) and could act as a brake on further leaching of PCE's
into the bedrock should any be occurring. (Pease Tr. At 79.) It
is true that SVE is highly unlikely to have a significant impact
on chemicals that are already in or below the bedrock, but there
is simply no evidence in this record from which I can conclude
that any are.*fn3
Thus, plaintiff has not come close to demonstrating a
likelihood of success on the merits of its RCRA claim. Indeed, it
has not even come close to making the showing that was deemed
insufficient to warrant an injunction against the dry cleaner in
Wilson. This alone is reason to deny the motion.
C. Plaintiff has not shown irreparable injury on its RCRA
To establish irreparable harm, plaintiff must demonstrate "an
injury that is neither remote nor speculative, but actual and
imminent." Tucker Anthony Realty Corp. v. Schlesinger,
888 F.2d 969, 975 (2d Cir. 1989). Additionally, the injury must be one
"not capable of being fully remedied by money damages." NAACP v.
Town of East Haven, 70 F.3d 219, 224 (2d Cir. 1995) (citing
Tucker, 888 F.2d at 975). The threat of irreparable harm is a
sine qua non for granting preliminary injunctive relief. See
Buffalo Forge Co. v. Ampco-Pittsburgh Corp., 638 F.2d 568, 569
(2d Cir. 1981). "[I]f there is no irreparable injury, there can
be no preliminary injunction." Markowitz Jewelry Co. v.
Chapal/Zenray, Inc., 988 F. Supp. 404, 406 (S.D.N.Y. 1997).
As discussed above, when a case is brought pursuant to an
environmental or health statute, the focus of the irreparable
harm inquiry shifts to concern for the public interest. See
Wilson, 989 F. Supp. at 1171. In a RCRA case, the irreparable
injury prong of the inquiry effectively merges with the court's
analysis of plaintiff's likelihood of success on the merits. This
court has determined that plaintiff will likely not be able to
prove an imminent and substantial threat to public health or the
environment if defendant is allowed to proceed with the current
cleanup plan. Because the danger is de minimis or nonexistent,
there is no danger to the public interest for the purposes of
Nevertheless, it is worth reiterating that the public interest
clearly favors denial of this motion. Enjoining installation of
the SVE system only delays remediation of the additional soil
contamination found by HRC during the cleanup. I also attribute
significant importance to defendant's claim that the SVE system
"will provide continual protection against potential PCE
contamination of the air located inside the former Mimi Cleaners,
the primary human exposure pathway, by preventing the migration
of contaminated vapors present below the building into the retail
(Def.Mem. ¶ 11) Compelling the excavation of additional soil
creates an engineering hazard that endangers the public using the
area and adjacent tenants (who include the U.S. Postal Service).
On the evidence before me, it also carries the very real
possibility of a less effective cleanup.
III. Plaintiff's breach of lease claim does not merit injunctive
Plaintiff requests the same mandatory injunctive remedy under
its pendent state law claim for breach of the ground lease.
Plaintiff argues that defendant is in violation of two provisions
in the lease. The first, Article Four, requires that defendants
comply with all applicable laws and regulations. The second,
Article 23, requires the lessee to secure the lessor's consent
for "alterations" costing in excess of $1,000, and the lessor can
not unreasonably withhold its consent.
The court acknowledges that New York law permits an injunction
to forestall the making of an unauthorized alteration to leased
premises, or to remove same, as long as the traditional criteria
for injunctive relief are met — that is, plaintiff is likely to
succeed on the merits and will be irreparably injured in the
event no injunction issues, and the equities balance in
plaintiff's favor. See McDonald v. O'Hara, 192 N.Y.S. 545, 548,
117 Misc. 517, 523 (1921); 209-13 West 48th Realty Corp. v. Rose
Offset Printing Corp., 74 N.Y.S.2d 216 (Sup.Ct. 1947). However,
no injunction can issue here, because plaintiff meets none of
A. Plaintiff is not likely to prevail on the merits of its
breach of lease claim
Turning first to likelihood of success on the merits, I first
hold that the installation of the proposed SVE system is not an
alteration, as that term is understood in New York law. An
alteration is an improvement that changes the nature and
character of the demised premises so as to impinge on the
landlord's reversionary estate. See Garland v. Titan W.
Assocs., 147 A.D.2d 304, 543 N.Y.S.2d 56, 60 (1st Dep't. 1989);
Harar Realty Corp. v. Michlin & Hill, Inc., 86 A.D.2d 182,
449 N.Y.S.2d 213 (1st Dep't. 1982).
The proposed SVE system is anything but an alteration. That a
system of this nature does not change the nature and character of
the premises is well settled. In Frequency Elec., Inc. v. We're
Assocs. Co., 120 A.D.2d 489, 501 N.Y.S.2d 693, 694 (2d Dep't.
1986), the court found that defendant lessee did not breach a
lease provision similar to the present provision when defendant
installed a ventilation system, because the system was "readily
removable" would not injure plaintiff's reversion. If a
ventilation system within leased premises is not deemed an
alteration, then a vapor extraction system under the leased
premises, which has no impact whatever on the nature and
character of the premises themselves, can hardly be deemed an
There is a second reason why plaintiff is unlikely to prevail.
In New York, a tenant is at liberty to erect structures to enable
it to carry on its business. See Garland, 147 A.D.2d 304, 543
N YS.2d at 60; Harar Realty Corp., 86 A.D.2d 182, 449 N.Y.S.2d 213;
N. & S. Decor Fixture Co., Inc. v. V.J. Enters., Inc.,
57 A.D.2d 890, 394 N.Y.S.2d 278, 279 (2d Dep't. 1977) Here, the
business of HRC is leasing stores for commercial purposes. The
presence of contaminants in and below the premises has a
deleterious impact on the ability to rent the premises, and the
ability of the tenant to use them safely for commercial purposes.
Finally, plaintiff is unlikely to prevail on the merits of its
claim that HRC is in violation of the sections of the lease that
require it to comply with all applicable laws, because there is
no evidence that HRC is not complying with all applicable laws.
To the contrary, what the evidence shows is that HRC is working
hand in glove with State health and environmental
authorities to bring the premises into compliance with the most
stringent of DEC's multi-layered environmental regulations. The
lease does not entitle plaintiff to dictate what remedial
measures HRC will use to clean up the Site — it only entitles
plaintiff to a Site that complies with the law. Notably, the law
does not require a completely clean Site — just one that complies
with DEC minimal emissions standards. As long as HRC achieves
that goal, there is no waste.
B. Plaintiff has not shown irreparable harm
Plaintiff has also not established that it will be irreparably
injured absent an injunction against this installation.
Christie-Spencer has not introduced a scintilla of evidence of
how the extraction of noxious chemicals under the supervision of
the DEC impairs the value of the reversion. Frankly, the
proposition is too counterintuitive to warrant further comment.
To the extent that plaintiff does not like the idea of having an
SVE system under its building, defendant clearly understands that
it will have to reopen the floor and take it up, at its own
expense, prior to returning the premises to the owner. And to the
extent plaintiff fears that it will someday be responsible for
further cleanup costs, it has an adequate remedy at law against
HRC under both CERCLA and RCRA, as well as the common law.
C. The balance of the equities favors the defendant
Finally, the balance of the equities tilts heavily in favor of
the defendant. To the extent plaintiff seeks to stop installation
of the SVE system, there are no equities on its side at all,
since there is no demonstrable harm from the system and defendant
needs to do something to redress its tenant's spill, not only to
bring it into compliance with the law but also to bring it into
compliance with the lease. To the extent plaintiff seeks to
compel defendant to excavate rather than rely on SVE, there are
no equities on its side, since the only competent evidence in the
record (that is, from an engineer) suggests that significant
further excavation would endanger the integrity of the structure
and adjacent structures — an intolerable risk. And to the extent
that plaintiff believes it is entitled under the lease to force
further investigation, it cites no controlling lease provision
and no evidence that further investigation is necessary —
especially in the face of DEC's continuing oversight of the
For the reasons expressed above, Plaintiff's request for a
preliminary injunction is denied and the temporary restraining
order is dissolved.