Plaintiff commenced this action against the defendants by filing a summons and complaint on September 5, 2013, seeking injunctive relief, preliminarily and permanently restraining and enjoining defendants from proceeding with a foreclosure sale of the collateral, including stock certificates, shares of capital stock and proprietary lease for the cooperative apartment owned by the plaintiff located at 70-25 Yellowstone Boulevard, Apt. 1-0 Forest Hills, New York.

According to the complaint, the plaintiff purchased shares of stock in the defendant corporation and executed a proprietary lease for the subject apartment on May 31, 1984. Plaintiff claims that despite his demand for an accounting from the defendants and for credit against his maintenance for a Senior Citizen Homeowners Exemption (SCHE) and Star Exemption received by the defendants, the owners have fraudulently denied receiving SCHE benefits and Star Exemption on the plaintiff's behalf. When the plaintiff unilaterally reduced the amount he paid for maintenance the defendants commenced an action for non-payment of maintenance against the plaintiff in Queens County Civil Court under Index No. 75984/2012. After a trial, at which the plaintiff appeared pro se, Judge Gilbert Badillo granted a money judgment against the plaintiff and in favor of the defendants in the amount of $13,681.40. As a result of the judgment, the plaintiff was evicted from the premises and received a notice on July 20, 2013 indicating that the owners would auction the apartment in October 2013. Plaintiff now seeks an order enjoining the sale of the premises, an order restoring him to possession of the apartment, and a judgment in the amount of $12,976 for credits against maintenance for the years 1999 through 2012 for Star Exemption and SCHE annual exemptions.

Based upon the above allegations, the plaintiff seeks to enjoin the defendants from auctioning his apartment. In support of his motion for a preliminary injunction, the plaintiff asserts that the defendants' notice of sale is defective and that the prior judgment in Queens Housing Court was based upon misleading and false representations by the defendants. He claims that the Housing Court action was commenced in November 12, 2012 and was based upon his alleged failure to make maintenance payments from December 11, 2011 through September 12, 2012. He claims, however, [*2]that he was making partial maintenance payments after failing to receive a review of his account to determine if the SCRE and Star exemptions were being properly credited. He also claims that he made partial payments in the amount of $8,800.00 that were not credited to his account. He claims that the Housing Court decision was incorrect and that he moved for reargument but the motions were denied. He also claims that he did not receive a copy of the Notice of Sale in the mail from defendants or defendants' attorney. He also claims that he has attempted to satisfy the Housing Court judgment in full but that the defendants refused to accept his check.

Counsel for the plaintiff states that the defendants failed to send notice to the plaintiff 90 days prior to the sale of the property as required by UCC 9-611(f). Counsel asserts that he plaintiff is entitled to a preliminary injunction enjoining the sale of the property based upon the fact that he is willing to satisfy the judgment, that he did not receive statutory notice of the sale, that he will suffer irreparable harm without the restraining order, that he has a likelihood of success on the merits, and that the status quo should be maintained pending the determination of the plaintiff's complaint.

Non-party Gideon Raviv, moves to intervene and seeks an order restraining both the plaintiff and the defendants from selling the subject apartment. Raviv claims that on November 13, 2013 he signed a sales agreement with a real estate broker to purchase the plaintiff's apartment for $180,000. The sales agreement, submitted as an exhibit, although signed by plaintiff's real estate agent, is not signed by the seller. Raviv claims that he is entitled to purchase the apartment and that his rights will be prejudiced if the action proceeds without his being given the right to intervene and the right to purchase the apartment.

In opposition, Eva M. Young, Esq., counsel for the defendants states that the plaintiff had not been current in his maintenance payments since July 2009. In September 2012 the defendant commenced a nonpayment proceeding in Civil Court. After a trial before Judge Gilbert Badillo, the court rendered a decision and Judgment in favor of the landlord in the amount of $13,661.40. Counsel states that as a result of the failure of the plaintiff to pay the judgment, pursuant to the terms of the proprietary lease, he was notified by the Board on August 1, 2013 that his shares of stock were cancelled and his proprietary lease was terminated. He was evicted from the apartment by the City Marshal on June 12, 2013. Plaintiff moved to reargue but did not appeal the Housing Court decision.

In opposition to the motion, Anthony Pellosie, an Executive Manager of Gerard J. Picaso, Inc., managing agent for Gerard Owners Corp. states that he was present at the trial in Housing Court at which the plaintiff made the identical allegations as those raised in this action, to wit, that he was not properly credited for payments made for his New York City Senior Citizen Rent Increase Exemption (SCRIE) and other tax benefits. Mr. Pellosie also states that the plaintiff was given proper notice on August 1, 2013 that the plaintiff's lease would be terminated and the shares appurtenant to the Apartment would be canceled and sold.

Counsel for defendants claims that the preliminary injunction should not be granted because the plaintiff is not likely to succeed on the merits. Defendants assert that the identical facts and issues raised by the plaintiff in his complaint have already been tried and decided by the Queens Housing Court in the prior nonpayment proceeding, and as such, the plaintiff's claims are barred by res judicata and collateral estoppel (citing Matter of Kafka v Meadowlark Gardens Owners, Inc., 34 AD3d 676 [2d Dept. 2006] Schachter v State of NY Div. of Hous. & Cmty. Renewal, 14 AD3d 615 [2d Dept. 2005]). Secondly, counsel argues that the auction sale is not subject to the notice requirement of UCC 9-611(f). In addition, the defendant contends that there are insufficient facts stated in the complaint with regard to fraudulent conduct or misrepresentations made by the defendants. Defendants also contend that the plaintiff will not suffer irreparable harm as he is no longer in possession of the apartment and he will receive the proceeds of the sale of the apartment after the judgment has been satisfied.

Defendants also oppose the motion to intervene by Gideon Raviv stating that Raviv is merely an interested buyer and has no actual possessory interest in the apartment and no standing to intervene in this action.

To establish entitlement to a preliminary injunction, a movant must establish (1) a likelihood or probability of success on the merits, (2) irreparable harm in the absence of an injunction, and (3) a balance of the equities in favor of granting the injunction" (Stockley v Gorelik, 24 AD3d 535 [2d Dept. 2005] (see Brach v Harmony Servs., Inc., 93 AD3d 748 [2d Dept. 2012] Matter of Advanced Digital Sec. Solutions, Inc. v Samsung Techwin Co., Ltd., 53 AD3d 612 [2d Dept. 2008] Montauk-Star Is. Realty Group v Deep Sea Yacht & Racquet Club, 111 AD2d 909 [2d Dept. 1985]). "A court evaluating a motion for a preliminary injunction must be mindful that the purpose of a [*3]preliminary injunction is to maintain the status quo, not to determine the ultimate rights of the parties (Masjid Usman, Inc. v Beech 140, LLC, 68 AD3d 942 [2d Dept. 2009] also see Matter of Wheaton/TMW Fourth Ave., LP v New York City Dept. of Bldgs., 65 AD3d 1051 [2d Dept. 2009] Coinmach Corp. v Alley Pond Owners Corp., 25 AD3d 642 [2d Dept. 2006]). Further, "a party seeking the drastic remedy of a preliminary injunction must establish a clear right to that relief under the law and the undisputed facts" (Omakaze Sushi Rest., Inc. v Ngan Kam Lee, 57 AD3d 497, 497 [2d Dept. 2008] also see Peterson v Corbin, 275 AD2d 35[2d Dept. 2000]).

Here, this court finds that the plaintiff has failed to show a likelihood of ultimate success on the merits by clear and convincing evidence (see Gluck v Hoary, 55 AD3d at 668 [2d Dept. 2008] Apa Sec., Inc. v Apa, 37 AD3d 502 [2d Dept. 2002]). The allegations contained in the complaint that the defendants fraudulently represented to the plaintiff that annual real estate credits and Star exemptions were not received by defendants and not properly credited to the plaintiff's maintenance account for the years 2009 through 2012 is the identical issue that was raised in the nonpayment proceeding in Queens Housing Court. Judge Badillo heard testimony and received evidence on that issue and found that the plaintiff created an outstanding balance on his maintenance by submitting a short payment every month since 2009. The court also found that the evidence showed that Mr. Rico received full credit for his tax related benefits and that he was not eligible for SCRIE benefits as a cooperative owner of an apartment not subject to rent regulation. Therefore, under the doctrine of collateral estoppel plaintiff would be precluded from relitigating the same issues which were previously decided against him in the Housing Court proceeding in which he had fair opportunity to fully litigate the matter (see Montoya v JL Astoria Sound, Inc., 92 AD3d 736 [2d Dept. 2012] Nachum v Ezagui, 83 AD3d 1017[2d Dept. 2011] Strough v Incorporated Vil. of W. Hampton Dunsee,78 AD3d 1037 [2d Dept. 2010] Matter of Kafka v Meadowlark Gardens Owners, Inc., 34 AD3d 676 [2d Dept. 2006]).

In addition, the auction sale is not subject to the notice requirement under UCC 9-611(f) which only applies to foreclosures by a securitized lender and is not applicable to a cooperative corporation's right to cancel stock and proprietary lease based upon a shareholder's default. The plaintiff was duly notified by letter dated August 1, 2013, sent by certified mail, in accordance with the provisions oft he proprietary lease, of the defendants' intention to terminate the plaintiff's proprietary lease and cancel his shares of stock.

The plaintiff has also failed to shows irreparable harm without the granting of a preliminary injunction in that the plaintiff has been out of possession of the apartment since June 12, 2013, almost one year ago. Plaintiff has sought the services of a licensed real estate broker to sell the apartment privately and the plaintiff will receive the proceeds of the sale of the apartment after the judgment is satisfied.Furthermore, a balancing of the equities does not favor restraining the defendants from selling the apartment. The plaintiff has not shown that any injury he is likely to sustain will be more burdensome to him than the harm likely to be caused to the defendants by restraining the sale of the apartment when the plaintiff has already had a full and fair opportunity to litigate the his claims regarding credit for senior citizen exemptions in the Queens County Housing Court and before Justice Kitzes in the Queens County Supreme Court in a special proceeding brought under Index No. 21275/2011. Therefore, the harm that would be caused to defendants' cooperative association in requiring them to continue to carry the costs of the apartment while this action is pending outweighs the harm as alleged by plaintiff (see Joseph v Joseph, 108 AD3d 597 [2d Dept. 2013]).

The motion by Gideon Raviv, a prospective buyer of the plaintiff's apartment, to intervene in this action is denied. "A person is permitted to intervene in an action as of right when, among other things, the representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment (CPLR 1012[a][2]... Additionally, the court, in its discretion, may permit a person to intervene, inter alia, when the person's claim or defense and the main action have a common question of law or fact (CPLR 1013)" (Spota v County of Suffolk, 110 AD3d 785 [2d Dept. 2013]). Here, this court finds that the prospective purchaser does not have a real and substantial interest in the outcome of the proceedings and moreover, he may participate in the auction if so advised. The proposed intervenor has no property rights in the subject apartment and will not be affected by a judgment The sales agreement he submitted although signed by a real estate broker was not executed by the buyer or the seller.

Accordingly, for all of the above stated reasons, it is hereby,

ORDERED, that the motion by Gideon Raviv for an order granting leave to intervene in the instant action is denied, and [*4]it is further,

ORDERED, that plaintiff's motion for a preliminary injunction is denied. The stay contained in the order to show cause dated October 4, 2013, is hereby vacated.

Long Island City, NY

ROBERT J. MCDONALD

J.S.C.