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Post v. Killian

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 11, 2010

JAMES POST, PLAINTIFF-APPELLANT,
v.
TODD KILLIAN, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered February 3, 2009, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for a preliminary injunction against foreclosing upon or transferring shares in a cooperative apartment and taking possession of the apartment, and denied a request to consolidate with a pending Civil Court summary holdover proceeding, unanimously affirmed, with costs.

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.

Tom, J.P., Sweeny, Moskowitz, DeGrasse, Manzanet-Daniels, JJ.

100008/08

A party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction, and a balance of equities in its favor (see Nobu Next Door LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]). Here, plaintiff has failed to show a likelihood of success on the merits of his challenge to a termination of his proprietary lease and shares by the apartment cooperative's board of directors, as he has not shown that the board acted in bad faith or outside the scope of its authority in a way that did not legitimately further the cooperative's corporate purpose (see 40 W. 67th St. v Pullman, 100 NY2d 147, 156 [2003]). Furthermore, based upon the evidence of record demonstrating plaintiff's misconduct while a resident of the cooperative, the balance of equities does not tip in his favor.

Plaintiff's request to consolidate this action with a holdover proceeding in Civil Court was rendered academic because that court had already granted relief in that proceeding.

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

20100511

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