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Essa Realty Corp. v. J. Thomas Realty Corp.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 16, 2010

ESSA REALTY CORP., PLAINTIFF-RESPONDENT,
v.
J. THOMAS REALTY CORP., DEFENDANT-APPELLANT.

Order, Supreme Court, New York County (Carol Edmead, J.), entered on or about May 14, 2009, which granted plaintiff's motion for a preliminary injunction and directed defendant immediately to "stabilize" the wall of its building and provide plaintiff with drawings and schemata by May 19, 2009, unanimously reversed, on the law and the facts, with costs, and the motion denied. Order (same court and Justice), entered on or about June 1, 2009, which directed defendant to comply with the court's previous order by repairing gaps and/or cracks in the wall within 10 days, unanimously reversed, on the law, without costs, in view of the foregoing.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Saxe, Moskowitz, Abdus-Salaam, RomÁn, JJ.

105885/09

Plaintiff failed to show a likelihood of success on the merits, as there are disputed issues of fact and dueling expert testimony concerning whether defendant's building was leaning on -- and thus causing damage to -- plaintiff's building (see generally Blueberries Gourmet v Aris Realty Corp., 255 AD2d 348, 349-350 [1998]). Plaintiff also failed to demonstrate any formal notification that the exterior wall of defendant's building presented an "unsafe condition" (see the maintenance responsibilities, including inspection and reporting requirements, in 28 NY City Administrative Code [City Construction Codes] art 302). The balancing of the equities favors defendant, which should not be compelled to physically alter its building on the basis of disputed facts.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100216

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