Cooper v. Bd. of White Sands Condo.

• Decision Date: 01 November 2011
• Citation: 89 A.D.3d 669,931 N.Y.S.2d 696,2011 N.Y. Slip Op. 07799
• Parties: Jerome COOPER, et al., appellants,v.BOARD OF WHITE SANDS CONDOMINIUM, et al., respondents.
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 669
931 N.Y.S.2d 696
2011 N.Y. Slip Op. 07799

Jerome COOPER, et al., appellants,
v.
BOARD OF WHITE SANDS CONDOMINIUM, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 1, 2011.

[931 N.Y.S.2d 697]

Mark L. Lubelsky, New York, N.Y., for appellants.Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, N.Y. (Peter A. Meisels and Kathleen A. Daly of counsel), for respondents.DANIEL D. ANGIOLILLO, J.P., ANITA R. FLORIO, JOHN M. LEVENTHAL, and JEFFREY A. COHEN, JJ.

[89 A.D.3d 669] In an action, inter alia, to recover damages for breach of fiduciary duty, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Galasso, J.), dated August 24, 2010, as denied their motion for a preliminary injunction.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiffs are owners of a condominium unit located in the White Sands Condominium, while the individual defendants are members of the condominium board. The plaintiffs moved for a preliminary injunction compelling the board to repair the exterior walls, a common element of the condominium, alleged to be the source of flooding in the plaintiffs' unit, compelling the removal of certain liens, and enjoining the board from assessing and collecting common charges from the plaintiffs so long as their unit was wholly or partially unusable.

The decision to grant or deny a preliminary injunction rests in the sound discretion of the Supreme Court ( see Tatum v. Newell Funding, LLC, 63 A.D.3d 911, 880 N.Y.S.2d 542). Where the movant does not demonstrate a likelihood of success on the merits, irreparable damage, and a balance of the equities in his or her favor, the motion should not be granted ( see Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 840, 800 N.Y.S.2d 48, 833 N.E.2d 191; Blinds & Carpet Gallery, Inc. v. E.E.M. Realty, Inc., 82 A.D.3d 691, 917 N.Y.S.2d 680; Alexandru v. Pappas, 68 A.D.3d 690, 890 N.Y.S.2d 593; Apa Sec., Inc. v. Apa, 37 A.D.3d 502, 831 N.Y.S.2d 201; Rattner & Assoc. v. Sears, Roebuck & Co., 294 A.D.2d 346, 741 N.Y.S.2d 894). “While the existence of issues of fact alone will not justify denial of a motion for a preliminary injunction, the motion should not be granted where there are issues that subvert the plaintiff's likelihood of success on the merits ... to such a degree that it cannot be said that the plaintiff established a clear right to...