Zucker v. Bernstein

202 A.D.3d 1147

159 N.Y.S.3d 916 (Mem)

Saul ZUCKER, respondent,

v.Sylvia BERNSTEIN, appellant.

2021–03783

Index No. 702301/20

Supreme Court, Appellate Division, Second Department, New York.

Submitted—January 4, 2022

February 23, 2022

Miller Law Offices, PLLC, Lynbrook, NY (Scott J. Farrell and Jeffrey H. Miller of counsel), for appellant.

Avi Rosenfeld, Lawrence, NY, for respondent.

COLLEEN D. DUFFY, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action for the partition and sale of real property, the defendant appeals from an order of the Supreme Court, Queens County (Denis J. Butler, J.), entered May 26, 2021. The order, insofar as appealed from, granted that branch of the plaintiff's motion which was for a preliminary injunction compelling the defendant to clean, or hire someone to clean, the interior of the residential portion of the subject property.

ORDERED that the order is affirmed insofar as appealed from, with costs.

When this action was commenced, the plaintiff, Saul Zucker, and the defendant, Sylvia Bernstein, owned real property in Far Rockaway as tenants in common. Prior to the commencement of this action, the plaintiff's father occupied a portion of the premises, using it as an office for his medical practice, and the defendant resided in the other portion of the premises. In January 2019, the defendant moved into a nursing home. According to the plaintiff, at some point during the defendant's absence, the plaintiff's father retired from the practice of medicine and no longer occupied the portion of the premises where his practice had been located. The premises fell into disrepair and the house became uninhabitable, with trash everywhere, bathrooms out of order, water damage, and crumbling ceilings.

In February 2020, the plaintiff commenced this action, seeking the partition and sale of the premises. In February 2021, a pipe burst and flooded the premises. As part of the claims process, a representative of the insurance company, CNA Financial, inspected the premises and advised the insurance agent that if the premises were not cleared within 30 days, the insurance policy would be cancelled. According to the plaintiff, the defendant refused to clean the property and prohibited the plaintiff from doing so. The plaintiff moved for a preliminary injunction, inter alia, compelling the defendant to clean the interior of the residential portion of the premises so that it complies with the underwriting requirements of CNA Financial, in order to avoid cancellation of the insurance policy. In an order entered May 26, 2021, the Supreme Court, inter alia, granted that branch of the motion. The defendant appeals.

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" ( Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 840, 800 N.Y.S.2d 48, 833 N.E.2d 191 ; see CPLR 6301 ; Jones v. State Farm Fire & Cas. Co., 189 A.D.3d 1565, 1566, 138 N.Y.S.3d 609 ; Porcari v. Griffith, 169 A.D.3d 729, 730, 91 N.Y.S.3d 705 ). " ‘The decision to grant a preliminary injunction is a matter ordinarily committed to the sound discretion of the court hearing the motion. Moreover, [i]n the absence of unusual or compelling circumstances, [the] court[s][are] reluctant to disturb said determination’ " ( 19 Patchen, LLC v. Rodriguez, 153 A.D.3d 1382, 1383, 61 N.Y.S.3d 616, quoting Masjid Usman, Inc. v. Beech 140, LLC, 68 A.D.3d 942, 942, 892 N.Y.S.2d 430 ; see Porcari v. Griffith, 169 A.D.3d at 729, 91 N.Y.S.3d 705 ).

Here, the plaintiff demonstrated a likelihood of success on the merits on the causes of action for the partition and sale of the premises. The plaintiff also demonstrated a danger of irreparable injury in the absence of an injunction, and that the equities...