Emerald Enterprises of Rochester, Inc. v. Chili Plaza Associates

• Decision Date: 14 March 1997
• Parties: EMERALD ENTERPRISES OF ROCHESTER, INC., Appellant, v. CHILI PLAZA ASSOCIATES and T.F. Brown's Inc., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 1011

656 N.Y.S.2d 1011

237 A.D.2d 912

EMERALD ENTERPRISES OF ROCHESTER, INC., Appellant, v. CHILI PLAZA ASSOCIATES and T.F. Brown's Inc., Respondents.

Supreme Court of New York, Appellate Division Fourth Department.

March 14, 1997.

Shapiro, Rosenbaum & Liebschutz, LLP by Sanford Shapiro, Rochester, for Appellant.

Harter, Secrest & Emery by Edward Premo, Rochester, for Respondents.

MEMORANDUM:

Plaintiff operates a bar and restaurant in Chili-Paul Plaza. Its lease with the owner, defendant Chili Plaza Associates (CPA), provides that CPA will not lease space to a "tavern, saloon or bar." The lease further provides that "this restriction has no application whatsoever, present or future, to any restaurant * * * conducting a bar and providing for * * * consumption and sale of alcoholic beverages as an incident to its restaurant food service business." Plaintiff commenced this action to enjoin the operation of a business in the plaza by defendant T.F. Browns Inc. on the ground that the proposed use of the premises violates the restrictive covenant in the lease.

Supreme Court properly denied plaintiff's motion for a preliminary injunction. "In order to obtain a preliminary injunction, the plaintiff must show by clear and convincing evidence that it is likely to succeed on the merits of the action, that it will suffer irreparable injury absent the injunction, and that the balance of the equities is in its favor (see, Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860 [552 N.Y.S.2d 918, 552 N.E.2d 166]; [W.T. Grant Co. v. Srogi, 52 N.Y.2d 496, 517, 438 N.Y.S.2d 761, 420 N.E.2d 953] )" (Key Drug Co. v. Luna Park Realty Assocs., 221 A.D.2d 598, 599, 634 N.Y.S.2d 502). We agree with the court that plaintiff has not met the first requirement because it failed to establish its clear right to the ultimate relief sought (see, Little India Stores v. Singh, 101 A.D.2d 727, 728, 475 N.Y.S.2d 38; City of Buffalo v. Mangan, 49 A.D.2d 697, 370 N.Y.S.2d 771). "[T]he policy of the law is to favor the free and unobstructed use of realty (Premium Point Park Assn. v. Polar Bar, 306 N.Y. 507 and * * * covenants restricting the use of property will be strictly construed against those seeking to enforce them (Buffalo Academy of Sacred Heart v. Boehm Bros., 267 N.Y. 242 )" (Huggins v. Castle Estates, 36 N.Y.2d 427, 430, 369 N.Y.S.2d 80, 330 N.E.2d 48; see, Sunrise Plaza Assocs. v. International Summit Equities Corp., 152 A.D.2d 561, 543 N.Y.S.2d 490, lv. denied 75 N.Y.2d 703, ...