This is an action to compel specific performance with respect to apartment 4D ( apartment"), located within the building owned, by defendant 141 Attorney Street Housing Development Corporation ( HDFC"). Plaintiff Jose Ventura also asserts claims for fraud, collusion, unjust enrichment, breach of contract, and for a permanent injunction. The individually named defendants are current members of the board of the HDFC.

Presently before the court is plaintiff's motion for a preliminary injunction, staying defendants from prosecuting a holdover proceeding against plaintiff in the housing part of the Civil Court of the City of New York (141 Attorney Street Housing Development Funding Corporation v. Ventura et al., L & T Index No.: 80019/2009) ( holdover proceeding"). Alternatively, plaintiff seeks an order directing the removal of the holdover proceeding from housing court and its consolidation with this action (CPLR §§ 326 and 602[b]). Defendants [*2]oppose the motion in its entirety.

After hearing oral argument on the temporary restraining order in plaintiff's order to show cause ( TRO"), it was granted on condition that plaintiff pay use and occupancy of $6,405. Plaintiff made that payment and the TRO remains in effect pending the court's decision on his motion, on condition that plaintiff remain current in his monthly use and occupancy payments (Orders, Gische J., 11/20/09 and 12/10/09).

Arguments presented

Plaintiff contends he moved into the apartment in 1998 pursuant to a written lease dated December 10, 1998. At that time, the rent was $700 per month. Sometime in May 2005 plaintiff approached the board about buying his apartment. He met with some board members and, according to plaintiff, the board agreed to sell the apartment to him. He provides a document called Board Resolution" dated May 24, 2005 ( board resolution"). It is signed by three people: Evalina Rodriguez, Juana Cruz and Cirio Peña. Evalina Rodriguez signed as secretary of the board.

The board resolution states as follows:

The undersigned Board of Directors of 141 Attorney Street Housing Development Fund Corporation, a New York Corporation having an address at 141 Attorney Street, does hereby certify:

That we the undersigned discussed and agreed to [sell] the apartment 2B to Mr. Simon Concepcion [a non party to this action] and 4D to Mr. Jose Ventura and Miguelina Ventura for the sum of $10,000. The rent will be discussed and decided later.

The names of the new officers of this corporation are duly authorized to act under this resolution and their signatures follow:

NameTitleOfficial signature

Evalina RodriguezSecretary/s/

Cirilo Peña

Juana Cruz

In August 2009, the HDFC commenced a holdover proceeding against plaintiff on the basis that he was offered, but did not sign, a renewal lease for his apartment. According to the housing court petition, the most recent lease for plaintiff's apartment expired April 30, 2009 and, therefore, the HDFC is entitled to recover possession of the apartment.

Plaintiff commenced this action by order to show cause dated November 20, 2009. He contends that the HDFC should be stayed from proceeding with his eviction until the ownership issues raised by him in this action are decided, otherwise any victory by him in Supreme Court will be pyrrhic and he will not be compensated by money damages. He alleges that the defendants engaged in fraudulent activity, including changing managing agents, to defeat his right to buy the apartment.

Defendants argue against the stay and consolidation because the issues to be decided in [*3]each court are different. Defendants contend the housing court action deals with plaintiff remaining in possession of an apartment he no longer has a right to occupy, since he refused to renew his lease when the last lease expired on April 30, 2009. Defendants also challenge the enforceability of the May 24, 2005 board resolution. They provide the affidavit of Maria Rodriguez, a member of the board of directors of the HDFC. Maria Rodriguez was also president of the board from 1997 until July 2005. According to Ms. Rodriguez, there was never any vote on selling the apartment to plaintiff and the board never agreed to make the sale. She states that she was unaware of any resolution" to sell apartment 4D to plaintiff, and she never cast a vote or was consulted about this issue, despite her being the elected president of the board.

Defendants argue that the resolution does not satisfy the statute of frauds because it is not a complete contract. For example, it does not contain all the essential terms of the sale, including how and when the payment would be made. Defendants also rely on a letter that plaintiff's lawyer at the time sent to the board. The letter, dated August 4, 2005 is addressed to Evalina Rodriguez, President [of] 141 Attorney Street HDFC" and carbon copied Maria Rodriguez. The letter states, in relevant part, as follows:

This will follow up on meetings and discussions regarding the above two apartments. Mr. Ventura and Mr. Concepcion would like to purchase the apartments they are currently in. The board of directors and the shareholders in the building met a few weeks back to arrange for the sale of the apartments to these two people and everyone appeared to be ready to go forward. There were further discussions with the then President of the Board, Maria Rodriguez, regarding the transactions and the purchase prices. Mr. Ventura and Mr. Concepcion understand that the price is important, but they would still like to move on the transactions as soon as possible so they can purchase. I recognize that you are in the process of receiving the corporation books and records from Maria Rodriguez as she has been voted out of office, but would it be possible to keep us advised when the cooperative is ready to arrange for the sales to Ventura and Concepcion?"

Defendants argue the letter is an admission by plaintiff that the material terms of the sale had not yet been agreed upon.

Plaintiff, in reply, provides the sworn affidavit of Andre Cirilo Peña, the same Cirilo Peña" who signed the board resolution. Peña states that at that time, he was the Vice President of the board and the board consisted of four people: Maria Rodriguez, Evalina Rodriguez, Juana Cruz and himself. He states further that the resolution was passed at a meeting attended by all the apartment owners and the board. The only people opposed were Maria Rodriguez, Michael Romanoff (a named defendant in this action) and one other tenant. Thus, Pena contends the resolution was passed in due course and Maria Rodriguez dragged her feet on implementing the sale for personal reasons.

Plaintiff does not address any of defendants' claims, that he refused to sign a new lease or that he stopped paying rent as of May 1, 2009. He did, however, pay use and occupancy of $6,405 which is an amount approximately equal to past due rent arrears.

The 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 [*4]in its favor (see CPLR § 6301; Nobu Next Door, LLC v. Fine Arts Housing, Inc., 4 NY3d 839 [2005]; Aetna Insurance Co., Inc. v. Capasso, 75 NY2d 860 [1990]; W.T. Grant Co. v. Srogi, 52 NY2d 496 [1981]). Although the party seeking a preliminary injunction does not have to provide conclusive proof of its right to such relief, and a preliminary injunction can, in the court's discretion, even be issued where there are disputed facts (Terrell v. Terrell, 279 AD2d 301 [1st Dept 2001]), generally a preliminary injunction will be denied unless the relief is necessitated and justified from the undisputed facts (O'Hara v. Corporate Audit Co., 161 AD2d 309 [1st Dept 1990]).

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, and if granted, tailored to fit the circumstances so as to preserve the status quo to the extent possible (generally, Second on Second Café, Inc. v. Hing Sing Trading, Inc., 66 AD3d 255 [1st Dept 2009]).

Dissembling plaintiff's argument they are best summarized as follows: he is seeking a stay of the housing court action so he can establish in this case that he has a present, vested, right to buy apartment 4D from the HDFC. By doing so, he hopes to avoid eviction altogether because he would be the owner, not the tenant, of the apartment. For the reasons that follow, the court finds that plaintiff has not proved his entitlement to a preliminary injunction against defendants proceeding with the holdover action against him, nor is there any reason to consolidate the housing court action with this action in Supreme Court.

Some essential facts are unrefuted. Thus, it is unrefuted that plaintiff's most recent lease expired on April 30, 2009, and although he was offered a new (renewal) lease he refused to sign it. No explanation is provided by him why he did not sign it.

It is also unrefuted that when his lease expired, plaintiff had rent arrears. This is despite claims by him that he agreed to pay an additional $215 a month to be applied towards the purchase price of the apartment.

It is also unrefuted that after the board resolution, plaintiff's lawyer sent a letter to the board dated August 4, 2005, urging it to arrange a sale." After that letter, plaintiff took no further steps to buy the apartment or enter into any kind of contract of sale. The housing court action is based upon plaintiff's failure to renew his lease and pay use and occupancy, although he remained in the apartment after the end of his lease term. In this action, however, plaintiff seeks specific performance of a board resolution which, according to plaintiff, is the equivalent of a contract to sell him apartment 4D at the agreed to price of $10,000. The Statute of Frauds, as codified in the General Obligations Law 5-703, provides that a contract for the sale of any real property, or an interest therein is void "unless the contract or some note, or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his lawful agent." The resolution is only signed by three members of the board, there is no indication that a quorum was present, and the resolution only states that we the undersigned discussed and agreed to [sell] the apartment . . . to [plaintiff] for the sum of $10,000. The rent amount will be discussed and decided later . . ." Plaintiff has not shown that the board resolution is an enforceable contract and therefore, not established a likelihood of success on the merits. The resolution is not signed by him. It does not contain all the material terms usually found in a contract to sell/buy an apartment. There is no mention of an offering plan, no statement about [*5]how much the maintenance is, or even how many shares are allocated to the apartment being sold.

Plaintiff has also failed to show that the equities balance in his favor. Assuming that he believed he had an enforceable contract to buy his apartment, plaintiff did nothing in the intervening years to enforce that right. It was not until the HDFC brought a holdover proceeding against him that he decided to pursue those claims. It is unclear whether plaintiff could have bought his apartment when he had rent arrears of several thousand dollars.

Although plaintiff contends he will suffer irreparable harm if these cases are allowed to proceed separately, the court disagrees. Plaintiff can pursue his defenses in housing court and attack the holdover petition on the merits. There is no reason to remove the housing court action and consolidate with this action. The issues are not the same and plaintiff has not shown a likelihood of success on the merits in this action. Therefore, plaintiff's motion for a preliminary injunction or, alternatively, a removal and consolidation of the housing court action is denied for that reason as well.

The temporary restraining order granted by the court on November 20, 2009 and extended pending the court's decision on plaintiff's motion is hereby vacated forthwith. Since there is no cross motion for the payment of use and occupancy, that condition of the TRO is hereby vacated as well, without prejudice to defendants seeking such relief in the housing court action.

This case is hereby scheduled for a a preliminary conference on April 1, 2010 at 9:30 a.m. in Part 10, Room 232 at 60 Centre Street. No further notices will be sent.

Conclusion

In accordance with the foregoing,

It is hereby:

Ordered that plaintiff's motion for a preliminary injunction or, in the alternative, an order removing the holdover action in housing court and consolidating it with this action is hereby denied in all respects; and it is further

Ordered that the temporary restraining order granted by the court on November 20, 2009 and extended pending the court's decision on plaintiff's motion is hereby vacated forthwith. Furthermore, since there is no cross motion for the payment of use and occupancy, that condition of the TRO is hereby vacated as well, without prejudice to defendants seeking such relief in the housing court action; and it is further

Ordered that this case is hereby scheduled for a preliminary conference on April 1, 2010 at 9:30 a.m. in Part 10, Room 232 at 60 Centre Street; and it is further

Ordered that any relief requested that has not been addressed has nonetheless been considered and is hereby expressly denied; and it further

Ordered that this constitutes the decision and order of the court.

Dated:New York, New York

February 22, 2010So Ordered:

_______________________

Hon. Judith J. Gische, J.S.C.