The plaintiff, Oswald Jeffers, moves by order to show cause, for a preliminary injunction enjoining defendants Bruce L. Stein (Stein), as the Public Administrator Kings and the Temporary Administrator of the Estate of defendant Alice Parker Gordon a/k/a Ales Parker Gordon; Cecil D. Worrell (Worrell), as the Administrator of the Estate of defendant James Gordon; their attorney, Domenick Napoletano, Esq.; and their agents, servants, employees or any person acting on their behalf from selling, transferring, and/or conveying the subject property herein to any third party.

FACTS AND PROCEDURAL HISTORY

Mr. Jeffers, the tenant and lessee for the subject property, commenced this action to quiet title to the subject property located at 1355 Fulton Street in Brooklyn, New York (the subject property). Mr. Jeffers has operated a moving and storage business at the subject property since he acquired possession in May 1997, and also subleases two residential apartments on the subject property to various tenants.

On or about May 13, 1997, the plaintiff entered a lease agreement (the Lease) with defendant, the late Charlie Matthew Storey (Storey) a/k/a Charles Storey a/k/a Charlie [*2]Mathew Storey. According to the Lease, Mr. Jeffers was to pay Storey a total of $18,000 as the annual rent for the subject property. Specifically, the Lease provided that Mr. Jeffers would collect rent from the residential tenants occupying the two apartments of the subject property and, in turn, pay Storey $1500 monthly in rent. The Lease terms also provided that the plaintiff would make all repairs to the entire subject property. Further, under the Lease, although title to the subject property had not yet vested with Storey, Storey covenanted that he would use due diligence and exercise good faith to obtain title within a reasonable time after execution of the Lease, and thereafter convey title to the subject property the plaintiff for $200,000. Lastly, the Lease stated that Mr. Jeffers would pay Storey $5000 as additional rent at the execution of the Lease. At the closing of title, all rental and additional rental already paid on the subject property from the date of the Lease's execution to the date of closing would be credited towards the $200,000 agreed purchase price.

According to Mr. Jeffers, prior to the negotiation of the Lease, Storey informed him that he had exercised dominion and unchallenged control over the subject property for sufficient time to obtain title to the subject property by adverse possession. Storey also allegedly told the plaintiff that he had been paying taxes on the property for over twenty years without interference or challenge from any third party. Based on Storey's representations, the plaintiff allegedly deposited $1500 as security on the property, paid the agreed monthly rental sum to Storey, and took possession of the subject property in May 1997. Mr Jeffers further alleges that he made repairs to the subject property totaling $199,999, and continues to maintain possession and occupation of the subject property to date. In February 2001, Mr. Jeffers commenced a summary proceeding in the Housing Part of Civil Court, Kings County, and was successful in evicting the residential tenant occupying the top floor apartment of the subject property for failure to pay rent.

In May 2003, Mr. Jeffers learned that the subject property was about to be sold by the City of New York at an auction sale due to unpaid real estate taxes. He contacted Storey and requested that he take immediate steps to pay the taxes and forestall sale of the subject property at the auction, but Storey failed to do so. The plaintiff then contacted JER Revenue Services, LCC ( JER ), the servicer of New York City tax liens, which informed him that there were several tax liens on the subject property that were past due, and that in order to forestall the foreclosure sale he would have to pay the entire balance of $36,263.83. He obtained a bank check in that amount and forwarded it to JER to pay off the entire balance, and also entered a series of agreements with JER to pay other outstanding tax liens on the property in the amounts of $30,699.43 and $27,558.64. Pursuant to his agreements with JER, Mr. Jeffers avers that he paid over $112,000 in tax liens on the subject property, and further, paid a total of $27,407.15 in taxes on the subject property for the years 2005-2010. He claims he also incurred other expenses on the subject property totaling $378,152, including for electricity ($21,607), and heating and fuel ($17,750).

On or about April 14, 2005, plaintiff commenced an action in this court, Jeffers v Storey, index No. 11286/2005, to compel Storey to comply with the terms of the Lease and [*3]obtain title to the subject property so that he could convey said property to plaintiff. However, Storey died on November 6, 2006, and the court stayed the Prior Action upon Storey's death so the Surrogate Court could administer Storey's estate.

In August 2010, Mr. Jeffers received a Ten Days Notice to Quit the subject property from defendants Stein and Worrell. In early September 2010, he received further papers from Stein and Worrell, notifying him that they had commenced a summary holdover proceeding to evict him and his moving and storage business from the subject property. Trial for the summary holdover proceeding against Mr. Jeffers was adjourned to October 22, 2010. The plaintiff also learned that similar summary holdover proceedings had been commenced against his residential tenants living on the subject property.

THE PARTIES' CONTENTIONS

Mr. Jeffers maintains that he believed Storey's representations that he had exercised dominion over and paid taxes on the subject property for a period sufficient to acquire the subject property by adverse possession and had entered the Lease in reliance thereon. He claims that if he is evicted from the subject property, it will destroy his moving and storage business, including the substantial client base and local community relationships he has developed over many years. Moreover, he claims, the eviction of his residential tenants/agents from the subject property prior to the determination of his interest therein would cause him irrevocable harm and prejudice. The plaintiff claims that defendants, on the other hand, would not suffer any prejudice if the court granted this application. Finally, he maintains that his case is meritorious because the subject property is unique, and it would be impossible to compensate him for all the expenses he incurred on the subject property, including taxes and repairs, if defendants were to evict him, his business, and his tenants/agents prior to the determination of his interest in the subject property.

In opposition, Stein, as the Public Administrator of Kings County and Temporary Administrator of the Estate of Alice Gordon, and Worrell, the appointed Administrator of the Estate of James Gordon seek denial of the instant order to show cause and sua sponte summary dismissal of the underlying proceeding, arguing that there is no evidence that Storey relinquished possession to the plaintiff, and moreover, that the plaintiff has not met the statutory ten-year period required for adverse possession. They first contend that the plaintiff's claim sounding in adverse possession is flawed because, although the plaintiff's claim to the subject property is apparently based on adverse possession by "tacking" (the plaintiff never specifically identifies it as such), CPLR 4519 (the New York Dead Man's Statute) requires transactions or communications between an interested witness and a decedent to be proven by means other than the testimony of the interested witness. Also, defendants assert, courts have consistently held that "tacking" the alleged adverse possessions of predecessors in title is not permissible without evidence that they intended to and actually turned over possession. Furthermore, defendants maintain that under Real Property Actions and Proceedings Law (RPAPL) § 531, the possession of real property by the tenant is deemed the possession of the landlord until ten years have expired after the [*4]termination of the tenancy (or the last rent payment), and that any adverse interest in the subject property by the plaintiff against Storey would have begun to accrue, if at all, a mere three years ago in 2007, ten years after the plaintiff began his tenancy under the 1997 Lease. Defendants additionally argue that the plaintiff lacks standing to seek any injunctive relief on behalf of the various residential tenants on the subject property, especially since each of those tenants have defaulted in their respective summary holdover proceedings in Civil Court.

DISCUSSION

To prevail on an application for a preliminary injunction, the movant must demonstrate, by clear and convincing evidence: (1) a likelihood of success on the merits; (2) an immediate and irreparable injury without the preliminary injunction; and (3) a balance of equities in the movant's favor (see Ginsburg v Ock-A-Bock Community Assn., Inc., 34 AD3d 637, 637 [2006]; Merrill Lynch Realty Assoc. v Burr, 140 AD2d 589, 592 [1988]). Moreover, a preliminary injunction may be imposed only if the parties to be enjoined will not suffer great hardship as a result of its issuance (see Mr. Natural, Inc. v Unadulterated Food Prods., 152 AD2d 729, 730 [1989]). The grant of such injunctive relief under CPLR 6301 lies within the discretion of the court (see Gerges v Koch, 62 NY2d 84 [1984], citing Kane v Walsh, 295 NY 198, 205 [1946]).

The court is mindful of the fact that it should not determine finally the merits of an action upon a motion for preliminary injunction. Rather, the purpose of the interlocutory relief is to preserve the status quo and prevent dissipation of property or injury to a person that would render a judgment ineffectual (see e.g. Ying Fung Moy v Hohi Umeki, 10 AD3d 604, 604 [2004]). Accordingly, where the movant's ultimate success on the merits cannot be determined at the time that the application is made, the existence of a factual dispute will not bar the granting of a preliminary injunction if such relief "is necessary to preserve the status quo and the parties to be enjoined will suffer no great hardship as a result of its issuance" (Mr. Natural, Inc., 152 AD2d at 730; accord U.S. Ice Cream Corp. v Carvel Corp., 136 AD2d 626, 628 [1988]; Burmax Co. v B & S Indus., Inc., 135 AD2d 599, 600 [1987]).

A balance of the equities tips in favor of Mr. Jeffers, who would lose the subject property where he operates his moving and storage business and where he has allegedly expended substantial sum of money for taxes and improvement of the subject property. The defendants, on the other hand, would suffer no great hardship as a result of the preliminary injunction, provided the mandatory undertaking is filed by the plaintiffs (see Hightower v Reid, 5 AD3d 440, 441 [2004]; W. T. Grant Co. v Srogi, 52 NY2d 496 [1981]).

However, the court finds that the plaintiff has failed to demonstrate that he would suffer an immediate and irreparable injury without the grant of injunctive relief. Although Mr. Jeffers argues that real property has a unique value for which a cash equivalent would not serve as an adequate substitute (see Seitzman v Hudson River Assocs., 126 AD2d 211 [1987]; Hirschmann v Hassapoyannes, 11 Misc 3d 265 [2005]), plaintiff's interest in the subject property is commercial rather than residential, and the harm he fears is the loss of his investment rather than that of his home (see Broadway 500 West Monroe Mezz II LLC v Transwestern Mezzanine Realty Partners II, LLC, [*5]80 AD3d 483 [2011], citing SK Greenwich LLC v W D Group [2006] LP, 2010 WL 4140445, *3, 2010 U.S. Dist. LEXIS 112655, *8 9 [2010]; cf. Tompkins v Jackson, 20 Misc 3d 1108[A], 2008 NY Slip Op 51285[U], *2, 9 [2008] ["[c]ourts have found that the loss of one's ownership and possessory rights in one's home is irreparable harm in and of itself."]). It is noted that the plaintiff offers no evidence in support of his claim of injury to his client base and business relationships (see Copart of Connecticut, Inc. v Long Island Auto Realty, LLC, 42 AD3d 420, 421 422 [2007]; Jacob H. Rottkamp & Son, Inc. v Wulforst Farms, LLC, 17 Misc 3d 382 [2007]). Although it may be difficult to calculate damage to the plaintiff's business, it cannot be said that a judgment rendered in Mr. Jeffers' favor would be rendered ultimately ineffectual without the preliminary injunction (see Scotto v Mei, 219 AD2d 181, 184 [1996]). Thus, the element of "immediate and irreparable injury" has not been met, and the granting a preliminary injunction would not be appropriate to preserve the status quo.

With respect to likelihood of success on the merits, a preliminary injunction may not be granted unless the party seeking it has stated a prima facie cause of action justifying a permanent injunction (see Graham v Wisenburn, 39 AD2d 334, 335 [1972]). To establish a likelihood of success on the merits, the movant must show that its right to a preliminary injunction is plain on the facts of the case (see Merrill Lynch Realty Assoc., 140 AD2d at 592-593). In order to set forth a valid claim for adverse possession, the plaintiff must prove five elements: possession must be (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period (see Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 159 [1996]; Speigel v Ferraro, 73 NY2d 622, 624 [1989]; Belotti v Bickhardt, 228 NY 296 [1920]). In New York, the statutory period is ten years (see RPAPL § 501; Ray, 88 NY2d at 159). Furthermore, "[a]dverse possession must be proven by clear and convincing evidence " (Walling v Przybylo, 7 NY3d 228, 232 [2006], citing Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 159 [1996]).

Here, it cannot be said that the plaintiff has set forth a prima facie claim for adverse possession. As defendant correctly indicates, Mr. Jeffers has not yet established an adverse possession claim because he does not set forth proof that he meets the statutory time requirement based on his own possession of the subject property. Under RPAPL § 531, the possession of real property by the tenant is deemed the possession of the landlord until ten years have expired after the termination of the tenancy (or the last rental payment). However, the plaintiff has not herein established that his tenancy under the Lease ended, that he stopped paying rent for the subject property, or that Storey otherwise acquiesced in Mr. Jeffers's exercise of ownership rights (see Walling, 7 NY3d at 232 ["The ultimate element in the rise of a title through adverse possession is the acquiescence of the real owner in the exercise of an obvious adverse or hostile ownership through the statutory period."], quoting Monnot v Murphy, 207 NY 240, 245 [1913]). Even if the plaintiff had arguably held the subject property hostilely and made improvements thereupon, given the execution of the Lease in May 1997, his adverse interest in the subject property would only have begun to accrue ten years later, in May 2007. When Mr. Jeffers commenced the action in 2010, only three years had passed, which is insufficient to satisfy the statutory ten-year period required under RPAPL § 501 for an adverse possession claim.

As for the argument that "tacking" the plaintiff's own possession to that of his predecessor (Storey) establishes the statutory period for adverse possession, that contention has not yet been shown to be true and thus, it also fails to demonstrate likelihood of success on the merits. The [*6]plaintiff relies on Storey's alleged statements about exercising dominion and unchallenged control over the subject property for a sufficient time to obtain title by adverse possession. However, these allegations are likely to be inadmissible at trial under the NY Dead Man's Statute (see CPLR 4519; Miller v Lu-Whitney, 61 AD3d 1043, 1045 [2009]; Friedman v Sills, 112 AD2d 343, 344 [1985]) or otherwise provable and thus do not demonstrate a likelihood of success on the merits. If the plaintiff is unable to tack his possession of the subject property to Storey's it appears that the likelihood of success on the merits is an unlikely result. As a movant need only fail with regard to one of the three criterion for the grant of a preliminary injunction, Mr Jeffers' motion must be denied.

Finally, defendant's request, made in its opposition papers, that the court summarily dismiss the underlying proceeding sua sponte is premature and must be denied. Although the court may, under CPLR 3212 (b), search the record and grant summary judgment to a party who has not sought such relief, that is permissible only where one of the parties has actually moved for summary judgment, which is undisputedly not the case here (see Barrett v Watkins, 52 AD3d 1000, 1002 [2008]; City Wide Payroll Serv. v Israel Discount Bank of NY, 239 AD2d 537, 538 [1997]).

Accordingly, it is

ORDERED that the plaintiff's motion for an order preliminarily enjoining defendants, their agents, servants, employees or any person acting on their behalf from selling, transferring, and/or conveying the subject property is denied; and it is further

ORDERED that defendant's request for sua sponte summary dismissal of the action is denied.

The foregoing constitutes the decision, order, and judgment of the court.

E N T E R,

____________________________

yvonne lewis, JSC