This motion seeks a preliminary injunction requiring the co-defendant, F.S. Sciame Construction Co., Inc., ("Sciame") to conduct its construction activity in accordance with a licensing agreement entered into with plaintiff. For the reasons set forth infra, the Court grants limited relief to plaintiff.

Two and a half years ago, co-defendant Adam Lindemann ^[FN1], plaintiff's next door neighbor, hired defendant Sciame to construct a building in place of Lindemann's town house. The Lindemann property is adjacent to plaintiff's town house.

The parties were initially unsuccessful in resolving the complaints of plaintiff, which included loud noises very early in the morning and late at night, debris on plaintiff's premises, injury [*2]to the plaintiff's terrace, etc. Plaintiff then brought a lawsuit against Lindemann. The lawsuit culminated in a licensing agreement between all three parties which included, inter alia, a licensing fee of $24,000, $15, 000 for all damages caused by defendants before the execution of the licensing agreement, and $32,000 for the use of the terrace to erect scaffolding. The lawsuit was discontinued without prejudice.

The license also required defendants to keep the plaintiff's premises free of debris and perform work on weekends before 10:00 a.m. and after 5:00 p.m. no more than two times per calendar month and to notify plaintiff in advance of the second weekend when the two weekends were consecutive. The project was to open on weekdays at 7:30 a.m., but only to prepare for construction work to start at 8:00 a.m. On weekdays, construction work was to end at 6:00 p.m. On only two times per week was work to start before 8:00 a.m. or after 6:00 p.m., and defendants were required to notify plaintiff any time work was to begin before 8:00 a.m. or after 6:00 p.m.

Plaintiff has charged defendants with numerous violations of their agreement in this lawsuit. They include destruction of his property, the creation of all sorts of construction debris on his property, the congregating of defendant Sciame's workers on his property during lunch hours and coffee breaks without removing the debris caused by these activities and beginning work before 8:00 a.m., and after 6:00 p.m. on weekdays more than twice a week without advance notice to plaintiff. He also charges them with weekend work commencing before 10:00 a.m. and after 5:00 p.m. much more than two times per month and without advance notice. The resulting noise has caused plaintiff loss of sleep and his sense of well-being and enjoyment of his property.

Sciame counters that this is a breach of contract case seeking money damages for which the equitable relief of a preliminary injunction is not available. Plaintiff, he argues, can obtain money damages for the alleged violations. Sciame also denies most of the claims charged by plaintiff and insists that it has offered to rectify any legitimate harm its construction activities have caused and is either awaiting plaintiff's response or has received plaintiff's refusal for such assistance. Therefore, argues Sciame, there is no irreparable harm. Moreover, it claims that any reasons for a preliminary injunction now are moot because all of the outside construction work for which all the complaints are lodged has been completed. Now, interior construction work to which plaintiff's complaints do not apply is being carried on.

In the parties' submissions and during oral argument, it was established that all of the exterior work has been completed. Plaintiff, however, continues to complain about the continued violations of their agreement as to the arrival and departure times of Sciame's employees and subcontractors which has resulted in excessive noise during periods when construction should have ceased for the day.

Sciame has not denied plaintiff's charge that Sciame told him that Lindemann's impatience with the 2 ½ years it has taken for the construction to this point has resulted in instructions to Sciame to speed things up. As a result, Sciame has had to start work before and continue after the times agreed to in the parties' licensing agreement. Sciame has not refuted plaintiff's charge that Mr. Sciame, who oversees the work of his employees and the subcontractor does not arrive on the scene until 9:00 a.m. Accordingly, the Court concludes that these unrebutted allegations establish that the licensing agreement provisions pertaining to the arrival and departure times of the Sciame workers have likely been violated resulting in excessive noise and discomfort to the plaintiff. [*3]

The Court notes that §6301 of the CPLR states in part that a preliminary injunction is appropriate where ... a judgment restraining the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff (emphasis added).

The continued violation of the terms of the licensing agreement pertaining to the starting and ending times of the violation of the license would produce injury to the plaintiff by violating his peace and quiet. While a contract action that seeks only money damages cannot result in equitable relief (Leo v Levi, 304 AD2d 621, 623 [2d Dept 2003]), the complaint seeks more than money damages, it seeks to enforce a specific provision of the licensing agreement. A contract clause is not automatically unenforceable because the clause is contained in a contract. Where the elements to satisfy the granting of a preliminary injunction exist, such contract clauses can be enforced. See, e.g. Spinal Dimensions, Inc., v Chepenuk, (2007 WL 2296503[Sup. Ct. Albany City]). This is particularly true where, as here, a permanent injunction has been requested (Taylor v Eli Haddad Corp., 118 Misc 2d 253 [Sup. Ct. NY Cty]).

An injunction should be available for the nuisance cause of action which plaintiff has also pleaded. Plaintiff is likely to be able to prove that the defendant's intentional acts have interfered with the plaintiff's right to the enjoyment of his land (Copart Industries v Consolidated Edison, 41 NY2d 564 [1977]). A preliminary injunction is, therefore, appropriate (Handler v 1056 Tenant Corp., 295 AD2d 238 [1st Dept 2002]).

In addition to the threshold issue of no adequate remedy at law is satisfied (Poling Transp. Corp. V A & P Tanker Corp., 84 AD2d, 796 [2d Dept 1981]). Only an injunction can offer an adequate remedy for the uncompensable suffering the drilling and banging at all hours of the morning and night has caused the plaintiff. With this element out of the way, plaintiff still needs to show a likelihood of success on the merits, irreparable harm and that the balance of hardships tips in his favor, id. The harm to plaintiff is irreparable. It cannot be replaced by any method other than preventing that which caused it from recurring. Given that the license is very clear as to the times that the defendant is permitted to conduct construction work, the plaintiff will likely prevail on this issue. Finally, the balance of hardships does tip in plaintiff's favor. The injunction will merely require the plaintiffs to spend more days completing the project. This pales in comparison to the loss of sleep and the interference with plaintiff's peaceful enjoyment of his property that the loss of an injunction will cause to the plaintiff.

The Court notes that neither of the parties has provided much information on the amount of the bond that should be obtained to secure the injunction. Therefore, the Court will require the plaintiff to post a bond in the amount of $15,000. Accordingly, it is

ORDERED that pending the final resolution of this action, the defendant F.J. Sciame Construction Co., Inc., is restrained from performing any construction work at 77 East 77th Street during the week before the hours of 8:00 a.m. and after 6:00 p.m. no more than twice per week with prior notice of the additional hours to the plaintiff and during the weekend no earlier than 10:00 a.m. and no later than 5:00 p.m. no more than twice a month with prior notice to the plaintiff before the second successive weekend where construction work occurs on two successive weekends; and it is further

ORDERED that plaintiff shall post a bond of $15,000 with sufficient surety to secure the [*4]damages incurred by Sciame for the vacating of the preliminary injunctions, if it succeeds in vacating the preliminary injunction.

Dated: __September 9, 2008____________

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Louis B. York, J.S.C.