Cummis & Gross P.C., New York (Mitchell D. Haddad of
counsel), for appellant.
Office of Allison M. Furman, P.C., New York (Allison M.
Furman of counsel), for respondents.
Sweeny, J.P., Richter, Moskowitz, Feinman, Gische, JJ.
Supreme Court, New York County (Joan M. Kenney, J.), entered
September 13, 2016, which granted plaintiffs' motion for
a preliminary injunction, and implicitly denied
defendant's cross motion to dismiss the complaint,
unanimously modified, on the law, to deny the motion for a
preliminary injunction, and to grant defendant's cross
motion to the extent of dismissing plaintiffs' Business
Corporation Law § 50(c) claim, and otherwise affirmed,
own an apartment in a cooperative building operated by
defendant. This dispute concerns plaintiffs' attempt to
build an enclosure on the balcony/terrace attached to their
apartment. Plaintiffs sought a preliminary injunction
enjoining defendant from compelling them to remove the
already constructed enclosure framework, declaring that they
are entitled to complete the enclosure, and enjoining
defendant from interfering with or otherwise preventing them
from completing it. The preliminary injunction should have
extent plaintiffs request an order declaring that they are
entitled to complete the enclosure and enjoining defendant
from interfering with such completion, such an order is
improper because it would upset, rather than maintain, the
status quo and would effectively grant the ultimate relief
sought (see Second on Second Café, Inc. v Hing
Sing Trading, Inc., 66 A.D.3d 255, 264-265 [1st
Dept 2009]; see also LGC USA Holdings, Inc. v Taly
Diamonds, LLC, 121 A.D.3d 529, 530 [1st Dept 2014]).
request for a preliminary injunction against removal of the
enclosure framework also must fail because plaintiffs have
not demonstrated the requisite irreparable harm (see
generally Doe v Axelrod, 73 N.Y.2d 748, 750 ). Any
costs incurred in removing the enclosure framework would be
compensable in money damages and do not warrant injunctive
relief (see Goldstone v Gracie Terrace Apt. Corp.,
110 A.D.3d 101, 105-106 [1st Dept 2013]; Louis Lasky Mem.
Med. & Dental Ctr. LLC v 63 W. 38th LLC, 84 A.D.3d
528, 528 [1st Dept 2011]; Schleissner v 325 W. 45
Equities Group, 210 A.D.2d 13, 14 [1st Dept 1994]).
Plaintiffs speculate that they may, at some point, lose their
lease, but this matter is not an eviction proceeding brought
by defendant. Therefore, because plaintiffs failed to allege
damages of a noneconomic nature, plaintiffs failed to show
irreparable harm, and injunctive relief is inappropriate.
cross motion to dismiss should have been granted as to the
Business Corporation Law § 501(c) claim. Plaintiffs do
not claim that the terms of their lease or shares are any
different from those of the other shareholders. Rather, they
claim that they were treated differently from other
shareholders because they alone were not permitted to
construct an enclosure without first obtaining
defendant's written permission. Assuming arguendo
plaintiffs were in fact treated differently, this is not the
type of differential treatment that Business Corporation Law
501(c) was designed to address (see Razzano v Woodstock
Owners Corp. 111 A.D.3d 522');">111 A.D.3d 522 [1st Dept 2013]; Spiegel
v 1065 Park Ave. Corp., 305 A.D.2d 204');">305 A.D.2d 204 [1st Dept 2003]).
cross motion to dismiss was properly denied, however, as to
the claim for injunctive relief. The documentary evidence
submitted by defendant was not sufficient to establish its
entitlement to judgment as a matter of law (see generally
Beal Sav. Bank v Sommer, 8 N.Y.3d 318, 324 ). It
is undisputed that defendant's written consent to the
alterations was never obtained, even though it was expressly
required by the lease and no oral waivers or modifications of
the lease were permitted. Although a lease term requiring any
modification to be in writing generally precludes oral
modifications, the requirement of a writing may be avoided
under certain circumstances pursuant to the doctrines of
partial performance or ...