The following papers numbered 1 to 14 were read on this motion by the defendant, ISRAEL ASHER LLC, for an order pursuant to CPLR 6301 granting a preliminary injunction in favor of said defendant enjoining and restraining the plaintiff from exercising and asserting dominion and control over premises known as 24-01 31st Street, Astoria, New York and from collecting rents or interfering with the management of the building and from threatening, intimidating, harassing or contacting the tenants or occupants of the building:

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This is an action commenced by plaintiff, Elaine Lelekakis, in which she is seeking partition of the real property located at 24-01 31st Street, Astoria, New York, 11102 pursuant to RPAPL § 901. The property is a residential/mixed use building with eight commercial and residential units. In addition, the plaintiff seeks compensatory and punitive damages for trespass and for the defendant's alleged willful, malicious and tortious interference with the contractual obligations between the plaintiff and the tenants currently occupying the property. Plaintiff also seeks a permanent injunction preventing the defendant from interfering with plaintiff's access to the property and ability to maintain the property for the tenants.

Plaintiff commenced this action by filing a summons and complaint on September 22, 2014 and an supplemental summons and amended complaint on October 6, 2014. Issue was joined by service of defendants' answer with counterclaim for partition dated October 30, 2014. According to the complaint the plaintiff was initially the sole owner of the property in question. She conveyed a one-half ownership interest to her brother George Voyiatgis in December 2004. After her brother passed away his share was sold to defendant Israel Asher LLC. Plaintiff then deeded a one-sixth interest to the Estate pursuant to the order of the Surrogates Court. Plaintiff alleges that the parties are unable to arrive at a consensus regarding the use, sale or other disposition of the property and thus requests that the property be sold in a partition sale. The parties are also not in agreement as to who should be responsible for the maintenance and management of the property including collection of rents pending the disposition of the case. By order dated May 5, 2015, plaintiff's counsel was relieved as counsel for the plaintiff and all further proceedings have been stayed for 30 days to permit plaintiff to retain new counsel.

Defendant Asher moves by order to show cause for an order pursuant to CPLR 6301 granting a preliminary injunction in favor of said defendant enjoining and restraining the plaintiff from exercising and asserting dominion and control over premises known as 24-01 31st Street, Astoria, New York and from collecting rents [*2]or interfering with the management of the building and from threatening, intimidating, harassing or contacting the tenants or occupants of the building.

In support of the motion, defendant submits an affidavit from Casey Schear, an employee of Israel Asher, LLC, the managing agent for the subject property. Mr Schear submits that Israel Asher LLC owns a two-thirds interest in the subject property and the remaining one-third interest in owned by plaintiff. Mr. Schear states that the plaintiff has refused to provide defendant Asher her with any accounting documents and has disputed the validity of Asher's purchase of the property. It is alleged that the plaintiff has collected rents from all of the rental units and failed to disburse the percentage of rental payments owed to the co-owners. Mr. Schear states that upon informing the tenants that Asher LLC had an ownership interest in the building, plaintiff and her husband proceeded to intimidate and harass the buildings tenants warning them not to pay rent to anyone other than the plaintiff. In addition, defendant submits affidavits from several tenants stating that during the course of her management of the subject property, plaintiff has allowed the building to fall into disrepair and has not responded to complaints from the tenants. The affidavits also state that plaintiff told the tenants not to pay rent to any other entity and that certain retaliatory measures were taken by the plaintiff against the tenants when rent was paid to Asher LLC such as changing locks and reporting building code violations.

In opposition, plaintiff, by prior counsel, moves for the appointment of a receiver to manage the real property pending the disposition of the partition action. However, by letter dated March 12, 2015, the plaintiff withdrew the cross-motion seeking the appointment of a temporary receiver. In opposition to the motion for a temporary injunction, the plaintiff submits the affidavit of Ilias Lelekakis, the husband of the plaintiff and plaintiff's managing agent. He states that he believes that plaintiff still has a one-third interest in the property. He denies threatening any of the tenants but does concede that he told them to pay rent to their landlord.

In reply, Mr. Asher has submitted records of the rent he has been collecting, expenses incurred in relation to management and maintenance of the subject property, and has set aside for the plaintiffs exclusive use and right one-third of all rents collected corresponding to plaintiff's undisputed one-third interest in the property. Defendant states that he has also set aside one-sixth of all rents collected in an escrow account corresponding to the disputed one-sixth interest.

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 (see Stockley v Gorelik, 24 AD3d 535 [2d Dept. 2005]; 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 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, it is clear that both parties agree to the need for a partition and sale of the premises. Defendant Israel Asher LLC, as the majority shareholder, submits evidence that it has presently been collecting the rents and paying the expenses for managing and maintaining the subject premises. In addition, the defendant states that it has been setting aside 1/3 of all rents collected for the plaintiff's exclusive use.

A preliminary injunction may be granted to maintain the status quo,(see Coinmach Corp. v Alley Pond Owners Corp., 25 AD3d 642 [1st Dept. 2006] [the purpose of a preliminary injunction is to maintain the status quo, not to determine the ultimate rights of the parties]). Further, the existence of factual disputes will not preclude the granting of temporary injunctive relief in order to maintain the status quo U.S. Reinsurance Corp. v Humphreys, 205 AD2d 187 [1st Dept 1994]).

Therefore, this Court finds that a balancing of the equities favors restraining the plaintiff from collecting the rents at this time and permitting the defendant Israel Asher LLC to collect the rents and pay the expenditures for the maintenance and management of the building. The defendants shall keep detailed records of the rental amounts paid by the tenants and the amounts it has expended for management and maintenance of the property. The defendant shall continue to set aside one third of the rents collected for the plaintiff s exclusive use and shall [*3]continue to place one-sixth of all rents collected in an escrow account. The defendant shall provide a copy of the their records to the plaintiff on t he 30th of each month commencing June 30, 2015.

Accordingly, this court finds a balance of the equities favors the granting of preliminary injunctive relief to maintain the status quo pending the resolution of the action (see Masjid Usman, Inc. v Beech 140, LLC, 68 AD3d 942 [2d Dept. 2009]; S.P.Q.R. Co., Inc. v United Rockland Stairs, Inc., 57 AD3d 642 [2d Dept. 2008]). The plaintiff will not be prejudiced by the injunction as the defendants shall maintain financial records as to the amounts collected and the amounts expended and the amount being set aside for plaintiff's share of the rental income.

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

ORDERED, that defendant's motion for a preliminary injunction is granted only to the extent that the plaintiff shall be preliminary enjoined from taking any action that would interfere with the status quo and shall permit the defendant Israel Asher LLC to collect the rent and pay the expenses until such time as this action is finally resolved or until further order of this Court. As stated above, the defendant shall provide plaintiff with a detailed financial statement concerning the building on a monthly basis. In addition, plaintiff or her managing agent shall not collect any rents, threaten, intimidate, or harass any tenants or occupants of the premises pending the final resolution of the matter.

Long Island City, NY

ROBERT J. MCDONALD

J.S.C.