Borenstein v. Rochel Properties Inc.

Decision Date19 September 1991
Citation574 N.Y.S.2d 192,176 A.D.2d 171
PartiesAbraham BORENSTEIN, et al., Plaintiffs-Respondents, v. ROCHEL PROPERTIES, INC., et al., Defendants-Appellants and Moshe Katlowitz, et al., Defendants.
CourtNew York Supreme Court — Appellate Division

Before MURPHY, P.J., and ROSS, ASCH, KASSAL and SMITH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Shirley Fingerhood, J.), entered on or about April 16, 1991, which, inter alia, granted the plaintiffs' motion for a preliminary injunction enjoining the defendants from enforcing or executing upon a certain confession of judgment filed against the plaintiffs, and required the plaintiffs to post a $10,000 undertaking in favor of defendant Rochel Properties, Inc., unanimously affirmed, with costs.

Plaintiffs allege, inter alia, fraud in the inducement and lack of consideration, and seek damages and a permanent injunction against enforcement of a confession of judgment executed by them and others, in favor of Rochel Properties, Inc., in connection with the refinancing of a real estate syndication venture in Philadelphia, Pennsylvania. Rochel Properties, Inc. took back a second mortgage on the property being developed. The confession of judgment was executed in order to further secure Rochel Properties due to a shortfall between the estimated foreclosure value of the property and the amount loaned by the first and second mortgagees.

"The decision to grant or deny [a preliminary injunction] lies within the sound discretion of the trial court. In the absence of unusual or compelling circumstances, this court is reluctant to disturb said determination, unless of course, it can be demonstrated that the court abused its discretion." (After Six Inc. v. 201 East 66th Street Associates, 87 A.D.2d 153, 155, 450 N.Y.S.2d 793, appeal dsmd., 57 N.Y.2d 835, 455 N.Y.S.2d 763, 442 N.E.2d 60). In this case, as in every case where a preliminary injunction is sought, the movants must demonstrate a likelihood of success on the merits, irreparable injury in the absence of the injunctive relief, and that the equities of the situation are in their favor. (CPLR 6301; Kaufman v. International Business Machines Corp., 97 A.D.2d 925, 470 N.Y.S.2d 720, affd. 61 N.Y.2d 930, 474 N.Y.S.2d 721, 463 N.E.2d 37.)

The record presented on this review demonstrates that the grant of the preliminary injunction did not constitute an abuse of discretion. While the parties dispute the factual assertions upon...

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  • Weeks Woodlands Ass'n, Inc. v. Dormitory Auth. of State
    • United States
    • New York Supreme Court — Appellate Division
    • May 31, 2012
    ...and generally should not be disturbed unless it is demonstrated that the court abused its discretion. See Borenstein v. Rochel Props., 176 A.D.2d 171, 574 N.Y.S.2d 192 (1st Dept.1991). Here, however, the court did not make the determination as an exercise of discretion by weighing the eleme......
  • Broadway Triangle Cmty. Coal. v. Bloomberg
    • United States
    • New York Supreme Court
    • December 23, 2011
    ...166 [1990]; City of New York v. Untitled LLC, 51 A.D.3d 509, 511, 859 N.Y.S.2d 20 [1st Dept. 2008]; Borenstein v. Rochel Props., 176 A.D.2d 171, 172, 574 N.Y.S.2d 192 [1st Dept. 1991] ).6 The majority of Defendants' arguments have been previously made and rejected. They include the argument......
  • 1–800 Postcards, Inc. v. AD Die Cutting & Finishing Inc., 101822/2010.
    • United States
    • New York Supreme Court
    • July 9, 2010
    ...See W.T. Grant Co. v. Srogi, 52 N.Y.2d 496, 517 (1981); Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 862 (1990); Borenstein v. Rochel Props., Inc., 176 A.D.2d 171, 172 (1st Dept 1991). Irreparable injury has been held to mean an injury for which monetary damages are insufficient. See James v. ......
  • Androschuk v. Khersonsky
    • United States
    • New York Supreme Court
    • February 24, 2022
    ... ... (U) MARTA ANDROSCHUK, individually and on behalf of LINDEN EYE CARE, INC. and NYC OPTICAL GROUP LLC, Plaintiff, v. RUSLAN KHERSONSKY a/k/a RUSLAN ... on the merits, (see, Borenstein v. Rochel ... Properties, 176 A.D.2d 171, 574 N.Y.S.2d 192 ... ...
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