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5678n & Jasmine Zheng, et al v. the City of New York

New York Supreme and/or Appellate Courts Appellate Division, First Department


February 2, 2012

5678N & JASMINE ZHENG, ET AL.,
PLAINTIFFS-APPELLANTS,
v.
THE CITY OF NEW YORK, ET AL.,
DEFENDANTS-RESPONDENTS.

Appeal from order, Supreme Court, New York County (Judith J. Gische, J.), entered on or about May 2, 2011, which, inter alia, denied plaintiffs' motion for a preliminary injunction, unanimously dismissed, without costs.

Zheng v City of New York

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.

Decided on February 2, 2012

Friedman, J.P., Catterson, Moskowitz, Abdus-Salaam, JJ.

Sanctuary for Families, New Destiny Housing Corporation, Center Against Domestic Violence, Safe Horizon, Violence Intervention Program, Inc., New York Asian Women's Center, Good Shepherd Services, Barrier Free Living, and Homeless Services United, Amici Curiae.

In this action for specific performance, and declaratory and injunctive relief, plaintiffs seek to bar termination of a rent subsidy program run by the NYC Department of Homeless Services even though federal and state funding was withdrawn effective April 2011. Plaintiffs argue that the various documents appertaining to the subsidy program (Certification Letters, Participation Agreements and Lease Riders) contractually obligate the City to continue the subsidies.

Plaintiffs moved for a preliminary injunction, obtaining a TRO pending a hearing. On May 2, 2011, the court denied the preliminary injunction. The court was unconvinced of plaintiffs' likelihood of success on the merits because the language in the program documents was consistent with the City's position that the program was simply a social services program, so there was no showing that each party had an actual intent to be contractually bound.

On May 10, 2011, plaintiffs filed a notice of appeal, and on May 12, 2011 filed a motion with this Court seeking injunctive relief pending appeal of the denial of a preliminary injunction. On June 2, 2011, this Court granted plaintiffs' motion, ordering the City to continue making the subsidy payments to landlords.

On September 13, 2011, the trial court dismissed plaintiffs' complaint in its entirety, declaring that the City was not obligated contractually to continue making the payments. This Court is now obliged to dismiss plaintiffs' appeal since well-established precedent mandates that, once a final judgment is entered, the right to directly appeal from an interlocutory order terminates (Matter of Aho, 39 NY2d 241, 248 [1976]). In this case, the trial court's decision was entered by order and judgment on October 6, 2011.

Further, the preliminary injunction granted by this Court pending the appeal must be dissolved since the purpose of a preliminary injunction is to maintain the status quo while an action is pending (see New York Auto Ins. Plan v New York Schools Ins. Reciprocal, 241 AD2d 313, 314 [1997]).

M-4540

M-4541

M-4799Zheng, et al. v The City of New York, et al. Motion seeking to dismiss appeal and vacate stay granted. Motion seeking to consolidate appeals and continue stay denied. Motion seeking leave to file amicus curiae brief granted.

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

ENTERED: FEBRUARY 2, 2012

CLERK

20120202

© 1992-2012 VersusLaw Inc.



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