Upon the foregoing papers, plaintiff Windberk Partners (plaintiff) moves by order to show cause for an order, pursuant to CPLR 6301, enjoining defendant Mizhir Realty LLC (defendant) and its agents from entering into or upon certain property located at 27 Dean Street in Brooklyn, New York. [*2]

In 1984, Oriental Quilting (owned by Al Mizhir, Sr.) sold the property at 35 Dean Street in Brooklyn, adjacent to 27 Dean Street, to plaintiff Windberk (plaintiff). To facilitate the sale, Al Mizher gave Mr. Ruben Windmiller, principal of plaintiff, a purchase money mortgage. At the closing for 35 Dean Street, Ruben Windmiller expressed his desire to have four terraces extend out from the top floor apartment units of 35 Dean Street onto the roof of the 27 Dean Street property, to increase the value of those apartments. Ruben Windmiller also requested to build a fire escape above the 27 Dean Street property. Al Mizher agreed to permit plaintiff to use a portion of his air space above the roof of the 27 Dean Street property for the limited purpose of erecting terraces and a fire escape, which would benefit plaintiff and plaintiff's 35 Dean Street property.

Accordingly, at the closing for the 35 Dean Street property, by deed dated July 26, 1984, Oriental Quilting granted to plaintiff part of the property which was "situated above an elevation of 51.46 feet ( the Elevation Line')."^[FN3] Specifically, the deed grants plaintiff:

"ALL that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being in the Borough of Brooklyn, County of Kings, City and State of New York [*3]bounded and described as follows:

ALL that portion of the below described parcel lying above a horizontal plane drawn at elevation 51.46 feet bounded and

described as follows:

BEGINNING at a point on the northerly side of Dean Street, distance one hundred (100) feet westerly from the corner formed by the intersection of said northerly side of Dean Street with the westerly side of Boerum Street (now Boerum Place); thence northerly and parallel with Boerum Street (now Boerum Place) one hundred feet to the southerly line of lot number 70, on said map; thence westerly and along the southerly line of lot number 70 on said map; twenty (20) feet; thence southerly and again parallel with Boerum Street (now Boerum Place) one hundred (100) feet to the northerly side of Dean Street, and thence easterly along said northerly side of Dean Street, twenty (20) feet to the point or place of BEGINNING; said dimensions more or less."

"It is intended that the horizontal plane referred to hereinabove shall be no lower than the roof and parapet of the one-story structure presently situate on the premises.

It is intended that . . . [Windberk] shall use the air rights conveyed herein solely and exclusively for the purposes of erecting and at its own cost and expense maintaining, repairing, restoring and replacing a fire escape over the premises and terraces on and over the premises which portion of the premises is immediately adjacent to the premises more particularly described as follows . . ." (emphasis added).

"The party of the second party [Windberk] agrees to replace the existing roof over the premises with a new roof, which is capable of supporting the terraces to be built, as a condition precedent to the construction of the terraces."

"The party of the first part [Oriental Quilting] is hereby granted by the [*4]party of the second part [Windberk], an easement to enter upon the air rights conveyed herein for the purpose of inspecting the roof, and if the party of the second part [Windberk] fails to maintain same, upon twenty (20) days prior written notice to the party of the second part [Windberk], its successors or assigns, to maintain and repair same and charge the cost thereof to the party of the second part [Windberk]" (emphasis added)."

According to defendant,^[FN5] plaintiff failed to replace the roof and instead erected four terraces and a fire escape above the existing roof. Defendant further alleges that in June, 2009, the roof began to leak severely, causing significant damage inside the 27 Dean Street property. The leaking was allegedly caused by scaffolding plaintiff erected in front of 27 Dean Street, without defendant's permission. In addition, defendant states that in September, 2009, after plaintiff removed the scaffolding, defendant learned that the entire roof was filled with debris, a condition which violated the deed permitting usage of the air space solely for terraces and a fire escape, and that the debris was allegedly blocking the only drain on the roof, causing further leakage into the 27 Dean Street property.

Defendant further avers that in 2010, due to the "incessant leaking," it hired an engineer to conduct a site inspection of the 27 Dean Street property. Finding leakage and other issues contributing to the leaks (standing water, only one drain), the engineer made certain recommendations deemed necessary to resolve the roof issues and to prevent future leaks. Plaintiff agreed to repair the roof and, in August, 2010, entered into a Letter Agreement with defendant to do so, as well as to install two new drains, terraces and skylights, and to provide defendant with a key to access the roof through the 35 Dean Street property, which is the only means of access to the roof. In the Letter Agreement dated August 9, 2010, defendant reserved certain rights in connection with the 27 Dean Street property, including the right "to install HVAC or other ventilation system[s] on [*5]the roof." By letter dated August 9, 2010, counsel for David Windmiller agreed with this condition, stating that "[m]y client agrees with the clarifications stated in your letter of August 9, 2010."

According to defendant, plaintiff: (1) performed "patch-work" "makeshift" roof repairs, which worsened the condition of the roof and failed to abate the leaking; (2) allegedly removed one skylight without permission, and never replaced it; and (3) gave defendant a key to access the roof, although the lock was changed, which forced defendant to enter the roof by ladder.

The parties provide differing accounts of the facts beginning in about 2013. According to defendant, in 2013, defendant's engineer inspected the roof again, observed severe leaking and other structural issues, and concluded that the roof required replacement and the addition of a second drain. Defendant further maintains that plaintiff failed to adequately repair or replace the roof.

According to plaintiff's principal, David Windmiller, plaintiff used its portion of the 27 Dean Street property and maintained the fire escape and terraces for the tenants of 35 Dean Street without incident for approximately 30 years. However, in March, 2013, defendant allegedly trespassed on plaintiff's property "for the purpose of installing wires, pipes and electrical conduit to service air conditioning compressors located on the roof of 23/25 Dean Street" and cut a hole in the roof of 27 Dean Street to install a skylight. Moreover, Mr. Windmiller asserted that for defendant to proceed with its renovations, and based upon the plans filed by defendant with the Department of Buildings (DOB), defendant would need to install and/or locate equipment in and on the portion of 27 Dean Street owned by plaintiff (including HVAC equipment, exhaust fans, and skylights). Further, Mr. Windmiller stated that defendant's contractors would have to trespass on plaintiff's property to install the equipment and skylights. Although Mr. Windmiller acknowledged that defendant would find it difficult to develop its buildings because defendant sold its property to plaintiff, he stated that "the simple fact is that defendant does not own [plaintiff's portion of the 27 Dean Street property] and must accept the consequences of that fact."

According to plaintiff, beginning in April, 2013, the parties engaged in discussions to avoid litigation over the alleged trespass and to avoid any "future problems," but negotiations broke down.

By letter dated June 12, 2013, defense counsel reiterated that the 1984 deed did not grant plaintiff any rights to the roof of the 27 Dean Street property; rather it merely granted it "the right to utilize the airspace above the property" solely to build "a fire escape over the premises and terraces on and over the premises." Defendant also pointed out that the deed only provided that plaintiff's rights pertained to the airspace "no lower than the roof and parapet" of the property; that plaintiff was in violation of the deed because it had failed to replace the roof, which it was required to do in consideration for its limited air rights; and that plaintiff had also neglected to maintain and repair the roof, as required by the deed. Defendant offered to continue negotiations, but indicated that if plaintiff continued to insist that defendant pay plaintiff's legal fees to do so, defendant would proceed with construction.By letter dated June 13, 2013, plaintiff responded that the deed conveyed an undivided interest in real property, i.e. "the air rights above [defendant's] property;" that there was no condition or limitation on the conveyance; that the deed only granted defendant a limited easement to inspect the roof, with no other rights granted; that the deed did not recite any consideration; that it had fully performed its obligations under the deed; and that the deed contained "the sole and exclusive remedy" for its alleged failure to maintain the roof. Further, plaintiff agreed to negotiate if defendant agreed to pay its legal fees. [*6]

Plaintiff did not receive a response from defendant. By letter dated July 3, 2013, plaintiff stated that defendant had not retracted its threat to proceed with construction unless plaintiff agreed to negotiate without charge to defendant. As such, plaintiff advised defendant that it would file an order to show cause seeking a temporary restraining order (TRO) and a preliminary injunction.

On July 9, 2013, plaintiff filed its order to show cause seeking a TRO and a preliminary injunction enjoining defendant and its agents from entering the 27 Dean Street property pending the resolution of this action. Plaintiff asserted that defendant had trespassed on its property by installing and maintaining pipes, wire and electrical conduit, as well as cutting a hole through the roof to install a skylight, despite the limited nature of defendant's easement as set forth in the deed. Accordingly, based upon the facts recited and arguments made in its June 13th letter (supra), plaintiff argued that defendant had trespassed upon its property and threatened to continue to trespass; that it was likely to succeed on the merits because the deed demonstrated that it was the owner of its portion of the 27 Dean Street property (i.e. that portion above the Elevation Line) where defendant intended to install compressors, ventilation fans for kitchens and bathrooms, and skylights; that it would suffer irreparable harm, namely improper interference of its property rights, unascertainable money damages, and harm to the tenants of the 35 Dean Street property; and that the equities were in its favor inasmuch as defendant had no right to use the property it sold plaintiff.

On July 9, 2013, the court ordered that "pending the hearing of this order to show cause defendant and its contractors or agents are prohibited from making any permanent alterations to, on, or above the roof of 27 Dean Street, Brooklyn, NY except that defendant may fix any leaks."

By order dated September 10, 2013, the court modified the TRO, as follows:

(1) The TRO is no longer in effect with respect to the section not subject to the 1984 Agreement/deed regarding 27 Dean St. Defendant is permitted to do work, erect structures and make changes to that portion.

(2) Defendant may not intrude on the property that is the subject of the 1984 deed/Agreement unless defendant sends a proposal to plaintiff on how they will comply w/ [Matter of Rosma Dev., LLC v South, 5 Misc 3d 1014 [A], [2004 NY Slip Op 51369 [U] [Sup Ct, NY County 2004] and the RPAPL as plaintiff agrees or the court orders.

(3) With respect to the 20 x 100 foot section, defendant will send a proposal plan to plaintiff which states [sic] all work defendant plans [sic] to perform for the roof and defendant [sic] will respond as to whether said plan is acceptable within one week.

In opposition to plaintiff's application and in support of its request to issue an order permitting defendant to erect ventilation systems on the roof, and a skylight, Mr. Alfred Mizhir, Jr. first argued that the only skylight defendant proposed to install on the roof (a sealed, non-operable skylight with no cage), and to which plaintiff had objected, was a skylight defendant had previously [*7]maintained on the roof for many years, and which plaintiff had unilaterally removed in 2010. Mr. Mizhir Jr. also stated that defendant would be removing its skylights which were on the roof, which would benefit plaintiff.

In addition, Mr. Mizhir asserted that plaintiff's position that defendant was precluded from physically entering the air space or undertaking any repairs was contradicted by plaintiff's prior position, when plaintiff provided defendant with a key to access the roof from plaintiff's building next door (see August 9, 2010 Letter Agreement, supra).

Further, Mr. Mizhir requested that the court direct plaintiff to remove the terraces on the roof so that defendant could replace the roof, which was leaking and crumbling. In this regard, Mr. Mizhir pointed to the deed, which provides that plaintiff must "at its own cost and expense . . . perpetually maintain, repair and if necessary, replace the roof . . ." and which also states that if the roof is not maintained, defendant may undertake the maintenance "and charge the cost . . . [to plaintiff]." Mr. Mizhir asserted that plaintiff has refused to lift its terraces and that defendant needed to replace the roof before its new construction in the interior of the 27 Dean Street property was destroyed.

In reply, Mr. David Windmiller asserted that defendant had not disputed that its predecessor in title had sold the property to plaintiff pursuant to the deed; that the deed transferred a fee simple interest in real property; not mere air rights; that the deed transferred ownership of plaintiff's portion of the 27 Dean Street property to plaintiff, upon which defendant had no right to enter or erect structures; and that he gave defendant the key to the roof because under the deed, defendant has an easement to inspect the roof. Mr. Windmiller also stated that defendant did not disputed that during the summer of 2013, it had trespassed on plaintiff's property and cut a hole in the roof to install a skylight. He urged the court to grant plaintiff's application because plaintiff's ownership of its portion of 27 Dean Street was undisputed, and because it was undisputed that defendant wanted to perform work on it.

Mr. Windmiller also asserted that the insertion of the skylight, no matter the size, constituted a trespass; that defendant could not force plaintiff to install anything on its property; and that there had never been any skylight in the area where defendant intended to install one, which was confirmed in an affidavit by a roofing contractor retained by plaintiff to replace the roof in 2010.

Mr. Windmiller also argued that defendant had to file a formal motion for the affirmative relief it sought (an order directing plaintiff to lift the terraces and to bear all costs associated with the roof replacement); that the deed did not permit defendant to replace the roof and to charge the cost to plaintiff since defendant had not provided it with the requiste 20 days' notice under the deed; and that plaintiff was ready, willing and able to replace the roof if defendant provided it the requisite notice.^[FN6] In this regard, Mr. Windmiller annexed a letter, dated April 24, 2013, in which defendant notified plaintiff that plaintiff had failed to maintain and repair the roof, and provided plaintiff with the requiste 20-days' notice, but withdrew that notice "with prejudice" in an email dated April 26, [*8]2013, because the parties had scheduled a meeting to resolve their dispute.

Mr. Windmiller also argued that plaintiff had never agreed to permit defendant to build on its property. Despite the August 9th, 2010 letters (supra), in which plaintiff's counsel agreed that defendant could "install HVAC or other ventilation system[s] on the roof," Mr. Windmiller asserted that "[a]ll [plaintiff's] counsel did was confirm that the defendant could retain any rights it may have had to install and HVAC system . . . [and that] [plaintiff] did not grant defendant any rights and it did not waive, and did not intend to waive, any rights it had as an owner of the Property." Mr. Windmiller further asserted that the parties' rights were set forth in the deed and that the "alleged modification of the [d]eed, which defendant alleges purports to grant it rights in the Property, is not signed by [plantiff] and is not notarized or authenticated." In addition, he contended that a skylight is not an "HVAC or other ventilation system" and that the roof referred to in the August 9th letters includes a five-foot portion which was not transferred to plaintiff.

In mid-November, 2013, the parties drafted a proposed stipulation, but it was not signed by the parties or so-ordered by the court. In correspondence to the court, defendant requested that the court enter the proposed order. Plaintiff objected, asserting that it owned the roof at issue; that the deed required defendant to provide plaintiff with the requiste 20 days' notice if it wanted the roof repaired; that plaintiff was ready, willing and able to replace the roof; that had defendant really wanted the roof repaired, it would have provided plaintiff with the requisite notice and allowed plaintiff to perform the work; and that the proposed order did not protect plaintiff since it permitted defendant to perform the work, which would potentially interfere with use of the decks by plaintiff's tenants.

Defendant responded that the parties had reached an enforceable agreement; that after plaintiff had agreed on the terms of the proposed order, it requested three modifications, to which defendant agreed; that there was a TRO in place which could be modified at the court's discretion; and that there was a pending motion upon which the court was authorized to rule.

Plaintiff replied that the parties had not reached a binding agreement and that defendant had not filed a motion for the relief he sought, which barred the court from granting defendant any relief.

In a sur-reply, Mr. Mizhir, Jr. averred in his affidavit that the current TRO was preventing defendant from replacing the roof, which had already caused damage and which posed an imminent threat of further damaging the newly constructed interior of defendant's property. In addition, he stated that in order to proceed without interference from plaintiff, he required a court order to enable him to remove the decks and repair his roof. Mr. Mizhir also asserted that the skylight issue was moot because he needed to replace the roof immediately, and thus he agreed to replace the roof without installing skylights. He contended that the roof leaks every time there is a storm.

Mr. Mizhir also claimed that the "malfunctioning roof" was caused by plaintiff's decks and the shoddy repairs plaintiff performed on the roof in 2010 (leaks due to plaintiff's decks having been constructed directly on the roofing membrane and without a protection pad between the decks and the roof membrane); that plaintiff was either incapable of properly maintaining the roof or was indifferent to the damage the roof was causing defendant; and that if plaintiff undertook the roof work, it would merely make matters worse.

Finally, Mr. Mizhir asserted that plaintiff has been notified of the roof condition in accordance with the deed by: (1) letter dated June 12, 2013, in which defendant's counsel notified plaintiff's counsel that plaintiff "had neglected to repair and maintain the roof, as required under the [*9]Agreement, causing [Mizhir] to incur substantial damage and expense;" (2) defendant's counterclaims in this action, alleging, among other things, that the roof "continues to leak to the present day . . . [t]he leakage has caused substantial damage to the interior of the 27 Dean Street Property and has hindered Mizhir's ability to proceed with construction;" (¶ 29), and 3) defendant's counterclaims and answer setting forth the conclusion of defendant's engineer, which attributes the leaks to plaintiff's terraces. Mr. Mizhir urged the court to sign the proposed order or to direct plaintiff to lift or move its decks so that defendant could repair the roof. Accordingly, plaintiff's application is presently before the court.

"To obtain a preliminary injunction, a movant must establish, by clear and convincing evidence, (1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) a balancing of the equities in the movant's favor" (Arthur J. Gallagher & Co. v Marchese, 96 AD3d 791, 791-792 [2012], citing CPLR 6301). "The purpose of a preliminary injunction is to preserve the status quo until a decision is reached on the merits"(Matter of c/o Hamptons, LLC v Zoning Bd. of Appeals of Inc. Vil. of E. Hampton, 98 AD3d 738, 740 [2012]). "[T]he remedy is considered a drastic one, which should be used sparingly" (Trump on the Ocean, LLC v Ash, 81 AD3d 713, 715 [2011]).

As an initial matter, the court notes that plaintiff seeks to enjoin defendant and its contractors from placing skylights, HVAC equipment, wires, pipes, electrical conduit, compressors, and exhaust/ventilation fans for kitchens and bathrooms on the roof of the 27 Dean Street property, all of which defendant planned to put in place when this litigation began. However, after months of litigation and negotiation, defendant no longer seeks to perform the above construction. Rather, defendant only seeks to remove the decks/terraces and to repair and/or replace the roof and, as such, seeks an order and/or modification of the TRO permitting same. Accordingly, the circumstances of this action have changed since the early stages of this proceeding.

With this in mind, the court finds that plaintiff has not established that it is entitled to injunctive relief. First, plaintiff has not demonstrated, by clear and convincing evidence, its likelihood of success on the merits. In this regard, plaintiff argues that it is the owner of its portion of the 27 Dean Street property, namely the " building and [i]mprovements' at 27 Dean Street which are situated above an elevation line measured at 51.46 feet from a proscribed datum point (the Elevation Line')," that defendant only possesses a limited easement with respect to plaintiff's portion of the property, and that due to the limited nature of defendant's easement, defendant trespassed upon plaintiff's portion of the property when it engaged in the construction noted immediately above. Plaintiff further asserts in its reply that "[t]he deed is clear and unambiguous [in] that it constitutes the transfer of a fee simple interest in real property," that it is not merely an "air rights" agreement, and that it transferred ownership of [plaintiff's portion of the property] "now and forever," upon which defendant has no right to enter or erect structures. Finally, in its letter to the court, dated November 22, 2013, plaintiff's counsel represent that plaintiff "owns the roof at issue, having purchased the roof and other property in 1984."

Despite its reliance upon the deed to support this position, the deed provides that plaintiff's rights pertain to the airspace "no lower than the roof and parapet" of the 27 Dean Street property. Moreover, the deed explicitly states that plaintiff:

"shall use the air rights conveyed herein solely and exclusively for the [*10]purposes of erecting and at its own cost and expense maintaining, repairing, restoring and replacing a fire escape over the premises and terraces on and over the premises . . ." (emphasis added).

Even assuming that the deed is interpreted differently, the court finds that plaintiff has still not shown that it will succeed on the merits, namely that defendant cannot repair the roof. In this regard, the deed expressly provides that plaintiff "agrees to replace the existing roof over the premises with a new roof, which is capable of supporting the terraces to be built, as a condition precedent to the construction of terraces." In addition, the deed requires plaintiff to "perpetually maintain, repair and if necessary, replace the roof over the premises . . .". Finally, the deed provides that if plaintiff fails to maintain the roof upon 20 days' prior written notice by defendant, defendant is entitled to repair the roof and charge the cost to plaintiff. Contrary to plaintiff's contention, by letter dated June 12, 2013, defendant's counsel advised plaintiff's counsel that "[n]ot only did your client fail to replace the roof with one capable of supporting the terraces . . . but your client has neglected to repair and maintain the roof, as required under the [deed]." Moreover, plaintiff's argument that it has not received the requiste 20 days' notice - after the extensive litigation and negotiation that has taken place in this matter - simply lacks credibility. In light of the foregoing, plaintiff has failed to establish the likelihood that it can succeed on the merits.

Plaintiff has also failed to demonstrate that it would suffer irreparable harm in the absence of a preliminary injunction.Plaintiff has failed to articulate why damage to its fire escape and/or decks/terraces would not be ascertainable. Even assuming that the repair work will interfere with the use of the decks by plaintiff's tenants, i.e. in the event the construction lasts beyond a date certain and plaintiff is required to provide its tenants with some sort of compensation or rent rebate, these damages are also calculable.

Finally, plaintiff has failed to demonstrate, nor does the record indicate, that the equities are in its favor. As explained above, it is unlikely that the deed can be interpreted in such a way that defendant has no right to enter upon or repair the roof because plaintiff owns it, as plaintiff argues. [*11]Moreover, defendant's principal, Mr. Mizhir, Jr., states in his sworn affidavit that the roof is leaking incessantly, damaging the newly constructed units in defendant's building and, conversely, it appears that plaintiff has failed in its obligations to both replace the roof and to maintain it.

Therefore, the court denies plaintiff's application for a preliminary injunction, and vacates the TRO. Further, inasmuch as plaintiff has failed to maintain the roof upon more than 20 days' notice, defendant is authorized to enter the roof, remove the deck/terraces, repair the roof, and charge the cost to plaintiff, except for the cost to remove and reinstall the deck/terraces.

However, as in Matter of Rosma Dev., LL (5 Misc 3d 1014 [A], [2004 NY Slip Op 51369 [U], *5 [Sup Ct, NY County 2004]), the court is mindful of the "resultant inconvenience to [plantiff]" (id.). Thus, as already alluded to, the court directs the repair and/or replacement of the roof and removal and reinstallation of the deck/terraces to be completed by April 20, 2014, before the deck/terraces are likely to be heavily used by plaintiff's tenants; that if defendant fails to reinstall the deck/terraces by April 20, 2014, it shall pay plaintiff, as liquidated damages, the sum of $200 per day per deck from April 21, 2014 until the deck/terraces are reinstalled; that defendant shall be held liable to plaintiff for any damages which it may suffer to its fire escape and/or deck/terraces as a result of defendant's work on the roof; and that upon proof of payment by defendant to the roofing contractor for the cost of repairing and/or replacing the roof, and upon a certificate of completion by the roofing contractor, and a certificate of release of mechanics' liens from

all contractors and suppliers, plaintiff will pay defendant the cost of repairing/replacing the

roof, excluding the cost of removing and reinstalling the decks/terraces on the roof.

This constitutes the decision and order of the court.

E N T E R

J.S.C.