Before the court is a motion by plaintiff to enjoin the defendant-building owner "from interfering with plaintiff's completion of a previously approved construction project at its offices on the 36th floor at 9 West 57th Street," and a cross-motion by defendant to dismiss the complaint pursuant to CPLR 3211(a) 1 and 7 on the grounds that plaintiff does not have legal capacity to sue, and "the subject lease constitutes a complete defense to the action."

Prior to the time of commencement of this action, plaintiff (a Delaware corporation) had changed its name to Natixis North American, Inc., but at such time it had not yet qualified to do business in New York. Plaintiff asserts it has subsequently qualified, but defendant maintains that no proof has been submitted that the requisite taxes have been paid. In any event, it has been stated that "the failure to plaintiff to obtain a certificate pursuant to Business Corporation Law § 1312 may be cured prior to the resolution of the action and its absence is an insufficient basis on which to grant summary judgment" [Uribe v. Merchants Bank of New York, 266 AD2d 21, 22 (1st Dept. 1999)]. See also, Beer v. F. W. Myers & Company, Incorporated, 159 AD2d 943 (4th Dept. 1990). Thus, the oral application to change the name of plaintiff to Natixis North America, Inc. is granted, and the motion by defendant to dismiss for lack of capacity to sue is denied.

Plaintiff asserts that it occupies approximately 78,000 square feet of space at 9 West 57th Street pursuant to a lease which runs through the year 2013; it pays defendant approximately $6,700,000 in annual rental; and during the 17 years of its occupancy it has expended approximately $20,000,000 in renovation costs. In the fall of 2006, defendant approved plans submitted by plaintiff for alterations to its premises on the 36th floor, and in November 2006 plaintiff commenced such work. In January 2007, at a time plaintiff states that it had already spent over a million dollars for the alterations that were then 90% complete, defendant sent plaintiff a notice denying it the right to use the freight elevators in the building and directing that all new construction work cease. Plaintiff contends that it needs approximately only one more week to complete the renovations that defendant had approved.

Defendant maintains that it properly halted construction because plaintiff was then in breach of the lease in that i) it had had air conditioning units removed from the premises without providing defendant with proper certification that the freon therein was properly disposed of in [*2]accordance with the federal Clean Air Act, and ii) because affiliates of plaintiff were occupying the premises without defendant's knowledge or consent and without defendant having been given proper notice of the occupancy thereof. It also argues that plaintiff is not entitled to the preliminary injunction sought because that it is the ultimate remedy sought in the complaint.

After three justices of this court recused themselves from hearing this case for various reasons, a justice of the Appellate Division stayed a preliminary injunction granted to plaintiff by Justice Edmead and directed an immediate hearing before the undersigned. Testimony was heard in this matter on 6 days through July 19.

It is well settled that a "party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of unreparable injury in the absence of an injunction and a balance of equities in its favor" [Nobu Next Door, LLC v. Fine Arts Housing, Inc., 4 NY3d 839 (2005)]. But it has been stated that "the existence of a factual dispute will not bar the granting of a preliminary injunction if one is necessary to preserve the status quo and the party to be enjoined will suffer no great hardship as a result of its issuance" [Mr. Natural, Inc. v. Unadulterated Food Products, Inc., 152 AD2d 729, 730 (2d Dept. 1989)]. The "decision to grant or deny a preliminary injunction rests in the sound discretion of the Supreme Court ... (and a) court can find that a plaintiff has a likelihood of success on the merits from the evidence presented though such evidence my not be conclusive'" [Yung Fung Moy v. Hohi Umeki, 10 AD3d 604, 605(2nd Dept. 2004)].

In Chrysler Corporation v. Fedders Corporation, 63 AD2d 567, 568-569 (1st Dept. 1978), the court wrote:

"Ordinarily, injunctive relief will not issue where its effect will be to grant all the relief to which the party may be entitled after a trial .... However, an injunction should be granted if the activity complained of will cause irreparable injury to the party seeking such relief before a trial can be held to resolve the underlying controversy. In this context, irreparable injury means a continuing harm resulting in substantial prejudice caused by the acts sought to be restrained if permitted to continue pendente lite .... [W]here injunctive relief is granted it is to be molded to fit the circumstances so as to preserve the status quo to the extent possible. In determining the nature and extent of such relief, a balance of equities must be struck to effect substantial justice and to preserve the status quo .... "

Regarding the claimed lease violation of unauthorized occupancy by plaintiff's related entities, the lease allows the occupancy of the premises, without the consent of defendant, of "affiliates" of plaintiff, but requires plaintiff to give defendant at least ten days prior written notice of such occupancy. Paragraph 76 of the Definitions section of the original lease dated August 25, 1990 provides that included as an "affiliate" are certain named entities as well as any entity "controlled" by the tenant or its parent, and the paragraph defined the term "control." However, by amendment dated July 19, 1999, the aforesaid definition of the term "affiliate" was deleted and replaced with one that omitted the names of the previously designated affiliated entities as well as the definition of the term "control," and merely defined an "affiliate" as any [*3]entity "controlled" by the tenant or its parent. Contrary to the argument of defendant that this amended definition limited the term, it would appear (without deciding) that this substituted definition broadened the term, with the likelihood that plaintiff could successfully demonstrate at trial that all entities occupying the demised premises are "affiliates" of the tenant, whose occupancy does not require the consent of the defendant. Any claim that the plaintiff is in breach of the lease because no notice of occupancy was given with respect to an affiliate whose occupancy was not previously specifically named in the original lease or any of the amendments thereto would most likely, under the circumstances, not be deemed a substantial violation so as to justify the defendant halting the construction.

With respect to the alleged violation of the federal Clean Air Act, it is noted that there is no proof that defendant ever notified plaintiff of such asserted violation until approximately two months after defendant gave notice that construction must cease. Thus, the alleged violation would not justify the January 2007 order to halt construction. In any event, the expert testimony provided by plaintiff shows that there is a likelihood of plaintiff successfully demonstrating that it was not in violation of said statute.

On the issue of irreparable injury, the court finds that the damages that plaintiff would sustain if it is unable to complete the intended construction of numerous trading desks would be extremely difficult to calculate and such inability would be severely detrimental to plaintiff's business. Moreover, paragraph 17-C of the lease provides that "in no event shall ... Landlord ... be liable ... for loss of business or consequential damages hereunder." Hence, money damages may not adequately compensate plaintiff if it is determined that defendant is liable to for improperly halting the renovation work.

Even though the grant of the requested preliminary injunction would essentially provide plaintiff with the ultimate relief requested in the complaint, extraordinary circumstances exist here that warrant such relief. Denial of the motion would result in the renovations already performed being unused in premises in which plaintiff is paying a significant rental, whereas allowing the completion of the 10% of the remaining work, which plaintiff maintains would only take approximately a week, would result in no "great hardship" to the landlord.

Thus here, where maintaining the status quo would mean unusable renovations in rented space and loss of business, the balance of the equities warrants the grant of the requested relief. It is noted that the landlord in no way claims that plaintiff is performing its construction work in any manner other than in accordance with the plans approved by defendant, nor is there any claim that the alterations are in any way adversely affecting defendant's building or any portion thereof.

In view of the foregoing, defendant's motin to dismiss is denied and it is enjoined from preventing plaintiff from completing the renovations in accordance with the plans previously approved by defendant. The grant of this motion is conditioned on plaintiff filing and serving prior to August 18, 2007 an undertaking in the sum of $200,000, or depositing with the Clerk of this court cash in that amount, to secure any liability that the plaintiff may incur in favor of defendant as a result of the grant of this injunctive relief. Plaintiff may offset any amount remaining on deposit pursuant to the order of Justice Edmead against the undertaking required hereunder.

Provided plaintiff timely complies with the said undertaking requisite, the injunction herein granted shall be effective as of 5 p.m. on August 22, 2007. [*4]

This decision constitutes the order of the court.

Dated: August 9, 2007________________

J.S.C.