Dinner Club Corp. v. Hamlet On Olde Oyster Bay Homeowners Ass'n, Inc., 6165.

• Decision Date: 15 September 2005
• Docket Number: 6165.
• Citation: 2005 NY Slip Op 06728,801 N.Y.S.2d 25,21 A.D.3d 777
• Parties: DINNER CLUB CORP., Doing Business as ARECA, Respondent, v. HAMLET ON OLDE OYSTER BAY HOMEOWNERS ASSOCIATION, INC., et al., Appellants, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

21 A.D.3d 777

801 N.Y.S.2d 25

2005 NY Slip Op 06728

DINNER CLUB CORP., Doing Business as ARECA, Respondent, v. HAMLET ON OLDE OYSTER BAY HOMEOWNERS ASSOCIATION, INC., et al., Appellants, et al., Defendant.

6165.

Appellate Division of the Supreme Court of the State of New York, First Department.

September 15, 2005.

Order, Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered on or about December 23, 2004, which granted plaintiff's motion for an order preliminarily enjoining defendants from withholding and refusing to deliver to plaintiff all funds collected as monthly dining charges from the homeowners of Hamlet on Olde Oyster Bay, unanimously reversed, on the law, without costs, the motion denied and the injunction vacated.

Plaintiff operates a restaurant and catering service at the Hamlet on Olde Oyster Bay, a gated community in Plainview, New York,^* pursuant to a lease with the Hamlet on Olde Oyster Bay Homeowners Association. In September 2004, the homeowners association ceased paying to plaintiff the monthly minimum food and beverage charge to which plaintiff is entitled under the lease. By order to show cause dated November 30, 2004, plaintiff sought to enjoin defendants from "holding and refusing to deliver to plaintiff all funds collected by defendants as monthly dining charges from Hamlet on Olde Oyster Bay homeowners." The motion court held that plaintiff met the familiar three-pronged test for the granting of a preliminary injunction (see Doe v. Axelrod, 73 NY2d 748, 750 [1988]), and granted the injunction. We reverse.

CPLR 6301 provides that "[a] preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff" (emphasis added).

It is well settled that preliminary injunctive relief is not available to a party seeking money damages on a breach of contract claim because "`[i]n no proper or legal sense can a defendant do or permit any act in violation of the plaintiff's rights respecting the subject of the action, in an action on contract for the recovery of money only. The plaintiff in such an action has no rights as against the property of the defendant until he obtains a judgment, and until then he has no legal right to interfere with the defendant in the use and sale of the same`" (Credit Agricole Indosuez v. Rossiyskiy Kredit Bank, 94 NY2d 541, 545-546 [2000...