In this action to enjoin defendant from continuing to excavate and construct a multiple dwelling at 291 Devoe Street, Brooklyn, New York, adjacent to plaintiff's one-family home, at 293 Devoe Street, Brooklyn, New York, plaintiff alleges that defendant has structurally damaged the foundation and walls to his home. Plaintiff, Vincent Ragone (Ragone) moves, by order to show cause, for a temporary restraining order (TRO), pending a hearing for a preliminary injunction, to enjoin defendant, Devoe Properties LLC, (Devoe) from: excavating and/or constructing any structure on defendant's lot that undermines or causes damage to plaintiff's property; directing defendant to remove any obstruction and materials on its lot that would hinder plaintiff from repairing his foundation wall; and granting plaintiff access to defendant's lot to repair plaintiff's foundation wall and home. Despite defendant's opposition to the order to show cause, the Court finds that plaintiff has met his burden, pursuant to CPLR § 6301, to grant temporary restraining order relief. The Court, pursuant to CPLR § 6312 (b), will order an appropriate undertaking to be given by plaintiff to defendant. Further, the Court will schedule a hearing to determine whether to grant a preliminary injunction.

Irving Rubin, the managing member of defendant limited liability corporation, in his affirmation in opposition, states that Devoe is constructing on the lot adjacent to plaintiff's property, a four-story multiple dwelling with eight apartments. It is undisputed that construction commenced during the summer of 2006.

Plaintiff alleges, in ¶ 4 of his affidavit in support of his order to show cause, that after construction began, defendant "seriously damaged the foundation and walls to my home" which caused: water seeping through the cracks to the foundation wall; mud seeping through the cracks to the foundation wall; movement of plaintiff's foundation wall away from his house, and [*2]toward defendant's excavation; cracked walls; a cracked basement floor; and, doors no longer plumb.

Plaintiff retained a professional engineer, Michael Simon, a principal in the firm of J. R. Holzmacher P.E., LLC, [reply affidavit of Michael Simon and exhibit B attached]. Mr. Simon, in his August 2, 2006-report [exhibit 1 of order to show cause], gave his damage findings with respect to the Ragone home from his August 1, 2006 inspection. He found:

The floor of the basement also exhibited expansion of the interface

joint between the wall and the floor, visible in photograph 5. This

was caused by movement of the foundation away from the house,

towards the excavation. When the exterior of the foundation was

excavated [by Devoe], it removed the soil that is needed to keep

the foundation from moving. The purpose of the underpinning was

to prevent movement of the foundation. Even though the existing

foundation is stacked stone, it is the obligation of [Devoe's] contractor

and design engineer to propose a system that will prevent any movement

of the foundation that is to be underpinned. The foundation has shifted

towards the excavation indicting a probable [sic] over excavation

during the underpinning panel excavation. Unfortunately this

damage is permanent and cannot be repaired. It will not be possible

to push the foundation back into place without removal of the

basement floor, and jacking of the house, which would create

further damage throughout the house. It is recommended that the

crack be filled with an elastomeric caulking to prevent water intrusion.

Further, it will now be necessary to coat the exterior of the foundation

with a waterproofing membrane. Tar will not be sufficient as it only

offers dampproofing [sic]. [Emphasis added]

Mr. Simon conducted another inspection on August 17, 2006, because Mr. Ragone claimed his house had moved on August 15, 2006 with the recommencement of construction. In his August 18, 2006-report [exhibit 2 of order to show cause], Mr. Simon found:

The [second] inspection of your house revealed extensive damage

to the foundation and walls adjacent to the excavation on the

neighboring property. Our first inspection of your house, on

August 1st , detailed damage caused by the excavation. The

most recent inspection revealed additional lateral and vertical

movement of your foundation caused by improper support during

excavation. The cracks that were previously documented had

opened further. The doors that were tight now became extremely

difficult to operate. New cracks have also become apparent,

especially on the second floor where the walls exhibits crushing

failures of the sheetrock tape joints. This pulling and crushing

of the various joints indicates a racking of the structure, which may

lead to severe structural defects of the framed walls. The full extent

of the movement cannot be visually determined until the sheetrock has

been removed . . . . [*3]

At this time, due to the further movement of your foundation

and resulting movement of the walls above this foundation we

recommend the following. The basement wall is now considered to

be failed and requires removal and replacement. It is not practical

to shim the space where the foundation has dropped. It is also not

recommended that the foundation be face formed and left in place.

The shifting of this building has created unknown stresses in

your stone foundation. This could lead to catastrophic failure

in the future. [Emphasis added]

Devoe presents in opposition the December 14, 2006-report of its professional engineer, Abraham Hertzberg [exhibit A opposing papers]. Mr. Hertzberrg's credibility is questionable. He claims to have inspected the underpinning at "203" Devoe Street, not "293" Devoe Street and refers to Mr. Simon as "Mr. Holzmacher." Mr. Hertzberg gives a self-serving statement to explain the adequacy of Devoe's underpinning work. The work is adequate because "I was a stonemason in my youth and I am knowledgeable and frequently use my knowledge to determine the capability of the stone." He also finds that the foundation walls of the two buildings are locked together, which will "provide structural support for the adjacent premises at 293 Devoe Street." He claims that "I was not made aware of any equipment that was used on this job that would cause any vibrations." The Court is perplexed as to how hammering and excavating work with heavy equipment could occur without vibrations from noise. Photograph 16 of Mr. Simon's August 18, 2006-report clearly shows heavy construction equipment in use next to the Ragone foundation.

What the Court finds most troubling about Mr. Hertzberg credibility is his statement that "I am a structural engineer with over thirty five-years experience; during which time I designed over 20,000 buildings ranging from 45 story skyscrapers to one family houses. During the past 10 years, I have designed two underpinnings a week [Emphasis added]." Mr. Hertzberg does not claim to be a licensed architect. Therefore, how did he "design" over 20,000 buildings and over 1,000 underpinnings in the past 10 years? If the Court takes Mr. Hertzberg at his word, how in the past 35 years did he average designing about 571 buildings a year, or approximately 1.56 buildings per day, seven days a week, without anytime off for weekends, holidays, vacations or illness? In addition to his herculean feats of design, Mr. Hertzberg asserts he has been able to design 1,040 underpinnings in the past 10 years. This doesn't take into consideration the time he might have allocated to physically inspecting his work at job sites. Therefore, Mr. Hertzberg's representations as an "expert" are outrageous, ludicrous and without foundation in reality.

Mr. Simon, in his reply affidavit, includes his December 18, 2006-report (exhibit C of Simon reply affidavit), in which he reports about his physical inspection of the Ragone property on December 15, 2006. He notes that crack or movement monitors, installed in September 2006 by the New York City Buildings Department, showed movement of 1 millimeter. This indicates that cracks became more severe. He observed that the cracks in the corners of the house continue to grow in length and plaintiff's foundation has moved vertically with respect to the foundation floor, indicating improper underpinning. In ¶ 24 of his reply affidavit, Mr. Simon states that plaintiff needs a preliminary injunction to "have an opportunity to replace his foundation and avoid a catastrophic failure." He concludes in ¶ 23 of his reply affidavit that: [*4]

Based on my experience and personal observation

A. There has been severe structural damage to Plaintiff's foundation

that must be replaced,

B. Defendant caused the damage,

C. The only manner to replace the foundation is from Defendant's

lot, which mst be accomplished before Defendant completes

its building [sic].

Plaintiff alleges in his affidavit in support of the order to show cause that the cost to bring his the house back to its former condition will be at least $285,000.00 [exhibit C of order to show cause - estimate for repair work]. Further, plaintiff claims that if Devoe is allowed to continue with its construction, he will be unable to make these repairs.

With respect to a proper undertaking to be given by plaintiff to defendant if the Court grants plaintiff a TRO, Devoe's counsel claims, in ¶ 11 of his affirmation in opposition, that "[d]efendant will be prepared to demonstrate an interest cost of $750.00 a day," but fails to document how he arrives at that figure. Further, in ¶ 16 of his affirmation in opposition, counsel alleges that "[c]alculating the interest cost as aforesaid while this case whine [sic] its way to trial, the continuing Tax costs, Insurance and other costs, this Court ought not to direct the undertaking of an amount less than $750,000.000."

A TRO "may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be held." The Court of Appeals, in Doe v Axelrod, 73 NY2d 748, 750 (1988) instructed that a preliminary injunction, pursuant to CPLR § 6301, "may be granted . . . when the party seeking such relief demonstrates: (1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in the moving party's favor (Grant Co. v Srogi, 52 NY2d 496, 517)." See Nobu Next Door, LLC v Fine Arts Housing, Inc., 4 NY3d 839 (2005); Aetna Ins. Co. v Capasso, 75 NY2d 860, 862 (1990); Kelly v Garuda, 36 AD3d 593 (2d Dept 2007); Cedar Graphics Inc. v Long Island Power Authority, 35 AD3d 337 (2d Dept 2006); Lattingtown Harbor Property Owners Ass'n. Inc. v Agostino, 34 AD3d 356 (2d Dept 2006); McNeil v Mohammed, 32 AD3d 829 (2d Dept 2006); Coinmach Corp. v Alley Pond Owners Corp., 25 AD3d 642 (2d Dept 2006); Ying Fung Moy v Hohi Umeki, 10 AD3d 604 (2d Dept 2004); Milbrandt & Co., Inc. v Griffin, 1 AD3d 327 (2d Dept 2003); JDOC Const. LLC v Balabanow, 306 AD2d 318 (2d Dept 2003); Seven Acre Wood Street Associates, Inc. v Town of Bedford, 302 AD2d 511 (2d Dept 2003); Mosseri v Fried, 289 AD2d 545 (2d Dept 2001).

In Related Properties, Inc. v Town Bd. of Town/Village of Harrison, 22 AD3d 587, 590 (2d Dept 2005), the Court instructed that:

Since a preliminary injunction prevents litigants from taking

actions that they would otherwise be legally entitled to take in advance

of an adjudication on the merits, it is considered a drastic remedy

which should be issued cautiously (see Uniformed Firefighters Assn.

of Greater N.Y.v City of New York, 79 NY2d 236, 241 [1992]; Gagnon

Bus Co. Inc. v Vallo Transp. Ltd., 13 AD3d 334 [2004]; Bonnieview [*5]

Holdings v Allinger, 263 AD2d 933 [1999]). [Emphasis added]

Because injunctive relief is drastic, the Court in Gagnon Bus Co. Inc. , supra at 335, held that the party seeking "a preliminary injunction must establish a clear right to that relief under the law and the undisputed facts upon the moving papers (see William M. Blake

Agency, Inc. v Leon, 283 AD2d 423 [2d Dept 2001])." See Peterson v Corbin, 275 AD2d 35 (2d Dept 2000); Brand v Bartlett, 52 AD2d 272 (3d Dept 1976).

An injunction is a provisional remedy to maintain the status quo until a full hearing can be held on the merits of an action. As such "[t]he decision to grant or deny a preliminary injunction rests on the sound discretion of the Supreme Court." Ruiz v Meloney, 26 AD3d 485 (2d Dept 2006). See Pouncy v Dudley, 27 AD3d 633 (2d Dept 2006); Coinmach Corp. v Alley Pond Owners Corp., supra; First Franklin Square Associates, LLC v Franklin Square Property Account, 15 AD3d 529 (2d Dept 2005); Ying Fung Moy v Hohi Umeki, supra; Mosseri v Fried, supra.

The movant for injunctive relief "must demonstrate a clear right to relief which is

plain from the undisputed facts." Blueberries Gourmet v Aris Realty Corp., 255 AD2d 348, 350 (2d Dept 1998), citing Family Haircutters v Detling, 110 AD2d 745, 747 (2d Dept 1985]. See JDOC Construction, LLC v Balabanow, supra at 319; Dental Health Associates v Zangeneh, 267 AD2d 421 (2d Dept 1999).

The claims of a plaintiff that harm is imminent and irreparable must be clearly demonstrated to the Court. When claims "are wholly speculative and conclusory," they "are insufficient to satisfy the burden of demonstrating irreparable injury." Khan v State University of New York Health Science Center at Brooklyn, 271 AD2d 656 (2d Dept 2000). In Golden v Steam Heat, Inc., 216 AD2d 440, 442 (2d Dept 1995), the Court instructed that "the irreparable harm must be shown by the moving party to be imminent, not remote or speculative." See Village/Town of Mount Kisco v Rene Dubos Center for Human Environments, Inc., 12 AD3d 501 (2d Dept 2004); Neos v Lacey, 291 AD2d 434 (2d Dept 2002).

In the instant action it is likely that plaintiff will succeed on the merits. Mr. Ragone has presented credible expert evidence that serious structural damage, caused by Devoe, occurred at his property. If this case were to proceed to trial, it is likely that Mr. Ragone would have ultimate success on the merits of the action.

Mr. Ragone's claims of immediate and irreparable injury are not speculative nor remote. The damage to his house is real. Continued excavation, much like previous excavation, can continue to harm plaintiff's property. Plaintiff's damages would increase if defendant continues to excavate and/or construct a multiple dwelling at 291 Devoe Street. Clearly, plaintiff has the prospect of suffering immediate and irreparable injury if a TRO is not granted.

The balance of the equities is also in plaintiff's favor. This Court cannot countenance a society in which one neighbor's excavation and construction topples another's house. If construction continues at 291 Devoe Street, plaintiff's building at 293 Devoe Street might collapse from structural defects, caused by the excavation and construction next door.

The Court of Appeals in Margolies v Encounter, Inc., 42 NY2d 475, 477

instructed that:

the purpose and function of an undertaking given by a plaintiff

pursuant to the provisions of CPLR 6312 (subd [b]), prior to the

the granting of a preliminary injunction, is to reimburse the defendant [*6]

for damages sustained if it is later finally determined that the

preliminary injunction was erroneously granted.

The statute gives discretion to the court in fixing the amount of the undertaking. The Appellate Division, Second Department in Blueberries Gourmet v Aris Realty Corp., supra, at 351, instructed that the court's determination of the undertaking "will not be disturbed absent an improvident exercise of that discretion." In Pouncy v Dudley, supra, at 635, the Court held that "the amount of an appropriate undertaking to be posted, are matters within the sound discretion of the Supreme Court (see Ying Fung Moy v Hohi Umeki, 10 AD3d 604, 605 [2004])." See Glorious Temple Church of God in Christ v Dean Holding, 35 AD3d 806 (2d Dept 2006). Therefore, exercising sound discretion, this Court sets the undertaking to be given by plaintiff to defendant in the amount of $50,000, in the form of a surety bond.

Conclusion

Accordingly, it is

ORDERED, that plaintiff Vincent Ragone's order to show cause for a temporary restraining order against defendant Devoe Properties LLC, is granted, in that defendant Devoe Properties LLC, pending a hearing on whether to grant a preliminary injunction, is enjoined and restrained from continuing to excavate and construct a building on the lot at 291 Devoe Street, Brooklyn, New York; and it is further

ORDERED, that defendant Devoe Properties LLC is immediately directed to provide plaintiff Vincent Ragone with unlimited access to the lot at 291 Devoe Street, Brooklyn, New York, to enable plaintiff to repair his foundation wall and home; and it is further

ORDERED, that defendant Devoe Properties LLC, shall be allowed to remove debris, concrete forms, construction materials and equipment from the lot at 291 Devoe Street, Brooklyn, New York; and it is further

ORDERED, that plaintiff Vincent Ragone shall give an undertaking to the defendant Devoe Properties LLC, in the amount of a $50,000.00 surety bond; and it is

further

ORDERED, that all parties appear in Part 27, Room 479, 360 Adams Street, Brooklyn, New York, on Monday, April 2, 2007 at 10:00 in the forenoon, for a hearing to determine if this Court shall grant a preliminary injunction in this matter.

This constitutes the Decision and Order of the Court.

ENTER

__________________________

HON. ARTHUR M. SCHACK

J. S. C.