Recitation in accordance with CPLR 2219 (a) of the papers considered on plaintiff Division Pupa Equities, Inc. (hereinafter plaintiff) order to show cause electronically filed on January 3, 2014, under motion sequence number one, for a temporary restraining order and a preliminary injunction enjoining Shaindy Fisch and Miriam Berkowitz, as Trustees of Simcha Trust and Simcha Trust (hereinafter the defendants) from performing construction work on certain real property which they own together.

- Order to Show Cause

- Attorney Affirmation [*2]

- Exhibits A - D

- Affirmation in Opposition

- Exhibits A- N

BACKGROUND

On January1, 2014, plaintiff commenced the instant action by filing a summons and complaint with the Kings County Clerk's office. The complaint contains fourteen allegations of fact in support of a single cause of action for a permanent injunction. The complaint alleges in pertinent part that the plaintiff is a one-third fee owner and the defendants a two-thirds fee owner of certain property located and known as 118 Division Avenue, Brooklyn, New York (hereinafter the subject property). Plaintiff contends that the defendants have undertaken construction work at the subject property without the plaintiff's permission and without proper government permits (hereinafter disputed work). Plaintiff further alleges that some of the disputed work has already caused damage to the subject property and has rendered the premises unsafe.

On January 6, 2014, Justice Donald Kurtz set forth the method of service of the instant order to show cause and the return date of the motion. Justice Kurtz also denied plaintiff's request for a temporary restraining order pending a hearing and determination of the instant request for a preliminary injunction. On January 17, 2014, the matter was scheduled for oral argument before Part 52 of this court.

MOTION PAPERS

Plaintiff's order to show cause consists of an affirmation of its counsel, an affirmation of its secretary^[FN1] and four annexed exhibits labeled A through D. Exhibit A is a copy of the summons and complaint. Exhibit B, C and D are printouts taken from of a web site maintained by the New York City Department of Buildings.

Defendants' opposition papers consist of an affirmation of its counsel and fourteen annexed exhibits labeled A through N. Exhibit A is described as a copy of plaintiff's instant order to show cause. Exhibit B is described as a renewal permit issued on January 8, 2014. Exhibit C is described as the plaintiff's deed for the subject property. Exhibit D is described as a title certificate for the subject property. Exhibit E is described as the defendants' deed for the subject property. Exhibit F is described as an agreement dated April 25, 1990, which established a division of ownership rights pertaining to the subject property. Exhibit G, H and N are printouts taken from of a web site maintained by the New York City Department of Buildings. Exhibit I is described as the parties agreement to [*3]arbitrate the dispute regarding the disputed work being performed on the subject property. Exhibit J described as a letter from the Rabbinical Court evidencing the parties agreement to arbitrate any dispute regarding construction of the subject property. Exhibit K and L are described as certificates of insurance. Exhibit M is an affidavit of an engineer opining upon the structural soundness of the subject property.

LAW AND APPLICATION

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 (Related Properties, Inc. v. Town Bd. of Town/Village of Harrison, 22 AD3d 587, 589 [2nd Dept 2005]). The purpose of a preliminary injunction is to preserve the status quo, so that upon a final hearing, the rights of the parties may be determined without injury to either (see Town of Carmel v. Melchner, 105 AD3d 82, 90-91 [2nd Dept 2013]). In order to obtain a preliminary injunction, the movant must present clear and convincing evidence establishing (1) a likelihood of success on the merits, (2) irreparable harm in the absence of preliminary injunctive relief, and (3) a balancing of the equities in favor of the movant (East Coast Drilling, Inc. v. Total Enterprise, Inc.,106 AD3d 688,689 [2nd Dept 2013]).

To sustain its burden of demonstrating likelihood of success on merits, preliminary injunction movant must demonstrate clear right to relief which is plain from undisputed facts; where facts are in sharp dispute, temporary injunction will not be granted (Related Properties, Inc. v. Town Bd. of Town/Village of Harrison, 22 AD3d 587, 590-591[2nd Dept 2005]).

In the case at bar, Shaindy Pfeiffer, the plaintiff's secretary, avers the following facts among others. The plaintiff own one-third of the subject property in fee and occupy a store in the ground floor of the subject property. The defendants own the other two-thirds and occupy apartments on the two floors above the store. The defendants undertook construction work of the upper floors without plaintiff's permission and without proper work permits. The work in progress has already caused damage to the ceiling of the store in the ground floor. Neither party mentioned whether the defendants have answered the complaint.

The defendants' opposition papers include documents purporting to show that the parties had agreed to arbitrate the instant dispute before a Beth Din. The documents also purport to show that the parties are bound by a written agreement pertaining to the very construction activity on the subject property described in the instant complaint.

At oral argument, the plaintiff did not deny the existence or validity of either the agreement to arbitrate or the agreement pertaining to the construction work at the subject property. CPLR 2214[c] provides in pertinent part that a moving party shall furnish at the hearing all other papers not already in the possession of the court necessary to the consideration of the questions involved.

There is no question that the agreement pertaining to the very construction work encompassed by the motion and the agreement to arbitrate the very dispute before this court are documents which the plaintiff should have provided to the court in connection with the instant motion in accordance with CPLR 2214[c]. They certainly raise a sharp issue of fact on the plaintiff's claim that the disputed construction work was undertaken without plaintiff's [*4]permission. By failing to do so the plaintiff could not and did not meet its burden. Furthermore, the documents and sworn submissions that it did submit with its motion papers did not establish the likelihood of plaintiff's success on its action for a permanent injunction or irreparable harm absent injunctive relief. Accordingly, plaintiff's application for a temporary restraining order is denied.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C.