August 7, 2013
JOANNE LEVEY, Plaintiff,
JACK RUTYNA, KRASSI RUTYNA, SPECTRUM NY INC, WOJCIECH OKTAWIEC, RA and PATH ARCHITECTURE, PC, Defendants. Index No. 156344/2013
DEBRA A. JAMES, JUDGE
Upon the foregoing papers, it is ordered that plaintiff's order to show cause for a preliminary injunction must be denied in all respects.
Plaintiff seeks provisionally to bar further construction activities by defendants. While plaintiff may be entitled ultimately to a permanent injunction against such activities (see Lesron Junior v
Feinberg. 13 A.D.3d 90 [1st Dept 1961]), the court declines to grant such relief at this juncture (Residential Bd. Of Mars, of Columbia Condominium v Alden. 178 A.D.2d 121 [1st Dept 1991]). In addition, as the parties' dueling surveys and affidavits "raise sharp issues of fact, "' the court shall exercises its discretion to deny preliminary relief (Residential Bd. of Mars.. ibid, at 123).
Plaintiff does not claim that future construction activities under defendants' plan will result in additional encroachments on her building, so she has not established irreparable harm with respect to her trespass claim. Moreover, to the extent that plaintiff seeks to compel defendants to submit certain filings with the New York City Department of Buildings (DOB), she has not demonstrated the likelihood of success on the merits of any cognizable claim that would yield such a remedy, though certainly such filings may be the subject of discovery demands. The court notes that, in any event, compelling the production of such records or their filings is inconsequential to preserving the status quo, i.e arresting any further harm to plaintiff, to wit, the alleged instability of her building arising from defendants' lowering of the ceiling height in the basement of their-building or the removal of structural members of that building that defendants plan in the future.
The undersigned takes judicial notice sua sponte that plaintiff's recourse for preventing injury or property damage posed by any safety hazard upon defendants' resumption of work, which is only speculative at this time, is to enlist an immediate response from DOB's Building Enforcement Safety Team (B.E.S.T.) unit. In fact, as set forth in the documents submitted by defendants, plaintiff has sought the intervention of DOB with respect to defendants' construction activities on many occasions over the last two months and DOB has determined each and every complaint to be unwarranted and unfounded. It is even more troubling that plaintiff offers no comment to the defendants' sworn assertions that plaintiff comes to the court with unclean hands because she and her husband are running an illegal dormitory for college students and a music studio in contravention of the applicable laws pertaining to the certificate of occupancy of their home and that her husband has committed vandalism against defendants' property.
Finally, with respect to plaintiffs claim that defendants' negligence in carrying out inaccurate plans will result in damage to her building's foundation and integrity, (which proposed plans defendants claim to have withdrawn), such injury is compensable by monetary damages.
Accordingly, it is hereby
ORDERED that the order to show cause of plaintiff for a preliminary injunction enjoining defendants from taking any action to perform any construction activities on 319 West 112thStreet, New York, New York and to compel defendants to submit certain filings to the New York City Department of Buildings pertaining to any such construction is denied; and it is further
ORDERED that the defendants shall serve and file an answer to the complaint pursuant to the CPLR.
This is the decision and order of the court.