Jones v. Park Front Apartments Llc

• Decision Date: 25 May 2010
• Citation: 2010 N.Y. Slip Op. 04438,901 N.Y.S.2d 46,73 A.D.3d 612
• Parties: Victoria JONES, Plaintiff–Respondent,v.PARK FRONT APARTMENTS, LLC, Defendant–Appellant,Ricardo Morales, etc., et al., Defendants.
• Court: New York Supreme Court — Appellate Division

73 A.D.3d 612

901 N.Y.S.2d 46

2010 N.Y. Slip Op. 04438

Victoria JONES, Plaintiff–Respondent,

v.PARK FRONT APARTMENTS, LLC, Defendant–Appellant,Ricardo Morales, etc., et al., Defendants.

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

May 25, 2010.

Wenig Saltiel LLP, Brooklyn (Meryl L. Wenig of counsel), for appellant.Steven Banks, The Legal Aid Society, New York (Sateesh Nori of counsel), for respondent.ANDRIAS, J.P., FRIEDMAN, CATTERSON, McGUIRE, ROMÁN, JJ.

Order, Supreme Court, New York County (Karen S. Smith, J.), entered May 4, 2009, which granted plaintiff a stay of eviction proceedings pending the outcome of this action; directed defendant landlord Park Front to accept plaintiff's payment of her proportional share of rent, without prejudice; directed Park Front to complete a Housing Assistance Payment contract and thereafter accept payment from defendant Housing Authority on plaintiff's behalf, without prejudice; and directed the Authority to extend the expiration date of plaintiff's Section 8 voucher pending outcome of the case, unanimously modified, on the law and the facts, to vacate the direction that Park Front complete a Housing Assistance Payment contract and thereafter accept payment from defendant Housing Authority on plaintiff's behalf, and otherwise affirmed, without costs.

To be entitled to a preliminary injunction, a plaintiff must show a likelihood of success, the danger of irreparable injury, and that the balance of equities are in his or her favor ( 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 [2005]; W.T. Grant Co. v. Srogi, 52 N.Y.2d 496, 517, 438 N.Y.S.2d 761, 420 N.E.2d 953 [1981]; CPLR 6301). However, “a mandatory preliminary injunction (one mandating specific conduct), by which the movant would receive some form of the ultimate relief sought as a final judgment, is granted only in ‘unusual’ situations, ‘where the granting of the relief is essential to maintain the status quo pending trial of the action’ ” ( Second on Second Café, Inc. v. Hing Sing Trading, Inc., 66 A.D.3d 255, 264, 884 N.Y.S.2d 353 [2009], quoting Pizer v. Trade Union Serv., Inc., 276 App.Div. 1071, 1071, 96 N.Y.S.2d 377 [1950]; see also St. Paul Fire & Marine Ins. Co. v. York Claims Serv., 308 A.D.2d 347, 349, 765 N.Y.S.2d 573 [2003] ).

Here, plaintiff demonstrated a balancing of the equities in her favor, irreparable harm if she were evicted from her long-time home and a likelihood of success on the merits of her claim that Park Front, a recipient of benefits under the City's J–51 tax abatement program, offered pretextual reasons for refusing to accept her proffer of rent payments in the form of a Section 8 housing subsidy ( see Administrative Code of City of N.Y. §§ 8–102 [25], 8–107[5][a][1]; § 11–243[k]; Kosoglyadov v. 3130 Brighton Seventh, LLC, 54 A.D.3d 822, 863 N.Y.S.2d 777 [2008] ). Although plaintiff's Section 8 housing voucher indicates a “family unit size” ( see 24 CFR 982.402[c] )...