In re G Builders Iv Llc

• Decision Date: 31 May 2011
• Citation: 84 A.D.3d 694,924 N.Y.S.2d 75,2011 N.Y. Slip Op. 04525
• Parties: In re G BUILDERS IV, LLC, Petitioner–Respondent,v.MADISON PARK OWNER, LLC, Respondent–Appellant.[And Another Action].
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 694
924 N.Y.S.2d 75
2011 N.Y. Slip Op. 04525

In re G BUILDERS IV, LLC, Petitioner–Respondent,
v.
MADISON PARK OWNER, LLC, Respondent–Appellant.[And Another Action].

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

May 31, 2011.

[924 N.Y.S.2d 76]

Zetlin & De Chiara LLP, New York (Lori Samet Schwarz of counsel), for appellant.Dunnington, Bartholow & Miller LLP, New York (Carol A. Sigmond of counsel), for respondent.TOM, J.P., SAXE, ACOSTA, FREEDMAN, ABDUS–SALAAM, JJ.

[84 A.D.3d 694] Order, Supreme Court, New York County (Alice Schlesinger, J.), entered May 10, 2010, which granted the petition brought pursuant to CPLR article 75 and issued a preliminary injunction staying the arbitration, unanimously reversed, on the law, without costs, the petition denied, and the preliminary injunction vacated.

Initially we note that Supreme Court did not specify whether it was staying arbitration pursuant to CPLR 7503(b) or issuing a preliminarily injunction pursuant to CPLR 7502(c). The order could not have been issued pursuant to CPLR 7503(b) because petitioner is the party that commenced the arbitration proceeding and, therefore, cannot be deemed to constitute “a party who has not participated in the arbitration” such that a stay of that proceeding could be warranted under CPLR 7503(b). Thus, the order must stand, if at all, as a preliminary injunction issued pursuant to CPLR 7502(c).

Petitioner was not entitled to a preliminary injunction for several reasons. First, petitioner's reliance upon the Fifth Amendment privilege against self incrimination is entirely unavailing. The notion that a corporation could somehow benefit from a personal invocation of the Fifth Amendment privilege [84 A.D.3d 695] has repeatedly been rejected ( Bellis v. United States, 417 U.S. 85, 88, 94 S.Ct. 2179, 40 L.Ed.2d 678 [1974]; United States v. White, 322 U.S. 694, 699, 64 S.Ct. 1248, 88 L.Ed. 1542 [1944]; Grant v. United States, 227 U.S. 74, 33 S.Ct. 190, 57 L.Ed. 423 [1913];

[924 N.Y.S.2d 77]

Big Apple Concrete Corp. v. Abrams, 103 A.D.2d 609, 612–613, 481 N.Y.S.2d 335 [1984] ).

Neither did petitioner demonstrate irreparable harm such that equity ought to intercede. The supposed increased costs of the arbitration are not the type of irreparable injury that warrant injunctive relief because even if they were certain to occur, the damages would be quantifiable ( see Broadway 500 W. Monroe Mezz II LLC v. Transwestern Mezzanine Realty Partners II, LLC, 80...