Preview
FILED: NEW YORK COUNTY CLERK 08/29/2023 04:32 PM INDEX NO. 158574/2023
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/29/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
=======================================X Index No.:
PROJJAL DUTTA,
Plaintiff,
-against-
LISA SILVERSMITH a/k/a LISA FIEKOWSKY and
THE NEW YORK CITY,
Defendants.
=======================================X
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIF’S EMERGENCY ORDER
TO SHOW CAUSE
Respectfully submitted,
Singh & Rani, LLP
Attorneys for Plaintiff
5 Penn Plaza, 23rd Floor
New York, NY 10001
212-729-6920
rrani@singhranilaw.com
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PRELIMINARY STATEMENT
This memorandum of law is submitted in the support of Plaintiff’s order to show cause which seeks
an order against Defendants to stop any demolition of the building located at 451 Convent Avenue, New
York, New York 10031 (“451 Property”). Plaintiff further seeks injunction requiring Defendant to maintain
her building to avoid damage to Plaintiff’s property located at 453 Convent Avenue, New York, New York
10031 (“453 Property”).
RELEVANT FACTS
The relevant facts are fully set out in the Affidavit of Projjal Dutta submitted herewith and
respectfully incorporated by reference.
ARGUMENTS
POINT I
PLAINTIFF IS ENTITLED TO
PRELIMINARY INJUNCTIVE RELIEF
AGAINST DEFENDANTS AND A
TEMPORARY RESTRAINING ORDER
The provisional remedy of a preliminary injunction in a New York civil action is governed by CPLR
§ 6301, which provides in pertinent part:
“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.”
The standard for granting preliminary injunctive relief is well-settled and well known. There
must be “a demonstration of the likelihood of ultimate success on the merits, irreparable injury
absent a grant of injunctive relief and a balancing of the equities in favor of the applicant.” Little
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India Stores v. Singh, 101 A.D.2d 727, 728, 475 N.Y.S.2d 38 (1st Dept. 1984). The issuance of a
preliminary injunction is traditionally discretionary with the court. see Longfield v. Ronk, 122
A.D.2d 409, 505 N.Y.S.2d 224 (3d Dept. 1986).
The Court need not finally determine the merits of the case on this motion rather
“[m]aintainence of the status quo is the object of the grant of provisional injunctive relief.”
Chrysler Corp. v Fedders Corp., 63 A.D.2d 567, 569, 404 N.Y.S.2d 844 (1st Dept. 1978). The
showing of a likelihood of success on the merits required before a preliminary injunction may be
properly issued must not be equated with the showing of a certainty of success. Tucker v. Toia,
54 A.D.2d 322, 388 N.Y.S.2d 475 (4th Dept. 1976). It is enough if the moving party makes a
prima facie showing of its right to relief; the actual proving of their case should be left to the full
hearing on the merits. Swope v. Melian, 35 A.D.2d 981, 317 N.Y.S.2d 985 (2nd Dept. 1970); and
see 12 Carmody-Wait 2d, NY Prac, 78:23, pp 71-72.
In this case, Plaintiff has demonstrated his right to a preliminary injunction under both
CPLR § 6301 and the relevant case law. Pursuant to CPLR § 6301 Plaintiff is entitled to injunctive
relief under both circumstances provided for therein.
First, injunctive relief is appropriate “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.” CPLR § 6301. Defendant’s egregious acts of causing damage are not isolated or
occasional, rather systematic and long running. Defendant is utterly unconcerned about the
damage her actions represent for the communities and individuals who have to live every day
with the consequences. Defendant’s actions have and continue to cause substantial damage to
Plaintiff’s property. The damage to Plaintiff’s property as a direct result of Defendant’s wilful
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negligence includes but not limited to, structural damage, water damage at the roof level, Raccoon
infestation, water damage from burst pipes at the basement level, nuisance from unauthorized
and unmonitored occupancy, nuisance from overall lack of maintenance, lack of sidewalk
shoveling and nuisance from scaffolding. There are cracks in the ceiling and wall, resulting from
distress coming from Defendant’s property. The cracks in the plaster of ceiling and wall are
occurring due to the sequential collapse of adjacent roof joists in Defendant’s property.
The stress in the roof structure of Plaintiff’s home, caused by the structural instability of
the Defendant’s building, has caused water ingress. In February 2019 the water pipes in
Defendant’s basement burst, first flooding the entire basement of Defendant’s, and then making
its way into Plaintiff’s basement. There has been scaffolding in front of Defendant’s property for
months. These scaffolding covers Plaintiff’s building, including the windows. It also provides
refuge to unwanted guests of both animal and human persuasion.
Defendant, Department of Building has issued a demolition order for Defendant Lisa’s
building which will have negative impact on Plaintiff’s building and other buildings in the
Historic Hamilton Heights neighborhood. Upon information and belief, the demolition order in
effect for Defendant, Lisa’s building is currently on hold.
As stated in Plaintiff’s affidavit, Defendant, Lisa’s building can be restored without
demolition and in a manner safe to all neighboring buildings, including the one belonging to
Plaintiff. As stated in Plaintiff’s affidavit, the brick structure of 451 Property is sound, even though
the timber structure is in an advanced state of decay. As stated in Plaintiff’s affidavit, brick being
the primary load bearing structure, as such there is no risk of collapse, and no need for demolition.
The Plaintiff being a licensed architect and having restored his own, almost identical, home, can
professionally attest to the fact that 451 Property can be restored to good health.
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Plaintiffs are entitlement to a temporary restraining order and a preliminary injunction
because there is a Plaintiffs can demonstrate: (1) a likelihood of success on the merits; (2)
irreparable harm; and (3) a balancing of the equities mandates the Court grant an order
temporarily enjoining Defendants and requiring them to protect and return Plaintiffs’ funds.
POINT II
PLAINTIFF IS LIKELY TO SUCCEED ON THE
MERITS
Likelihood of Success on the Merits
Plaintiff is likely to prevail as Defendant Lisa has undoubtedly failed to care for her building
resulting in damage to Plaintiff’s property. Even Defendant, Department of Building has a
pending lawsuit against Defendant Lisa due to her failure to protect her property.
Irreparable Harm
In absence of a court order directing a stoppage on any demolition of the building located at
451 Property and further requirement of protecting Plaintiff’s property damage due to Defendants’
actions, Plaintiff will suffer irreparable harm.
Balancing of the Equities
A balance of the equities clearly tips heavily in favor of Plaintiff. No prejudice will come
to Defendants if the Court grants the requested relief.
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CONCLUSION
For the foregoing reasons, Plaintiffs’ emergency order to show cause be granted in its entirety,
along with such and further relief as the court deems proper.
Dated: August 3, 2023
New York, NY
Singh & Rani, LLP
By: _______________________________
REENA RANI, ESQ.
Attorneys for Plaintiff
5 Penn Plaza, 23rd Floor
New York, NY 10001
212-729-6920
rrani@singhranilaw.com
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Preview
FILED: NEW YORK COUNTY CLERK 08/29/2023 04:32 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/29/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK =======================================X Index No.: PROJJAL DUTTA, Plaintiff, -against- LISA SILVERSMITH a/k/a LISA FIEKOWSKY and THE NEW YORK CITY, Defendants. =======================================X MEMORANDUM OF LAW IN SUPPORT OF PLAINTIF’S EMERGENCY ORDER TO SHOW CAUSE Respectfully submitted, Singh & Rani, LLP Attorneys for Plaintiff 5 Penn Plaza, 23rd Floor New York, NY 10001 212-729-6920 rrani@singhranilaw.com 1 1 of 6 FILED: NEW YORK COUNTY CLERK 08/29/2023 04:32 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/29/2023 PRELIMINARY STATEMENT This memorandum of law is submitted in the support of Plaintiff’s order to show cause which seeks an order against Defendants to stop any demolition of the building located at 451 Convent Avenue, New York, New York 10031 (“451 Property”). Plaintiff further seeks injunction requiring Defendant to maintain her building to avoid damage to Plaintiff’s property located at 453 Convent Avenue, New York, New York 10031 (“453 Property”). RELEVANT FACTS The relevant facts are fully set out in the Affidavit of Projjal Dutta submitted herewith and respectfully incorporated by reference. ARGUMENTS POINT I PLAINTIFF IS ENTITLED TO PRELIMINARY INJUNCTIVE RELIEF AGAINST DEFENDANTS AND A TEMPORARY RESTRAINING ORDER The provisional remedy of a preliminary injunction in a New York civil action is governed by CPLR § 6301, which provides in pertinent part: “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.” The standard for granting preliminary injunctive relief is well-settled and well known. There must be “a demonstration of the likelihood of ultimate success on the merits, irreparable injury absent a grant of injunctive relief and a balancing of the equities in favor of the applicant.” Little 2 2 of 6 FILED: NEW YORK COUNTY CLERK 08/29/2023 04:32 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/29/2023 India Stores v. Singh, 101 A.D.2d 727, 728, 475 N.Y.S.2d 38 (1st Dept. 1984). The issuance of a preliminary injunction is traditionally discretionary with the court. see Longfield v. Ronk, 122 A.D.2d 409, 505 N.Y.S.2d 224 (3d Dept. 1986). The Court need not finally determine the merits of the case on this motion rather “[m]aintainence of the status quo is the object of the grant of provisional injunctive relief.” Chrysler Corp. v Fedders Corp., 63 A.D.2d 567, 569, 404 N.Y.S.2d 844 (1st Dept. 1978). The showing of a likelihood of success on the merits required before a preliminary injunction may be properly issued must not be equated with the showing of a certainty of success. Tucker v. Toia, 54 A.D.2d 322, 388 N.Y.S.2d 475 (4th Dept. 1976). It is enough if the moving party makes a prima facie showing of its right to relief; the actual proving of their case should be left to the full hearing on the merits. Swope v. Melian, 35 A.D.2d 981, 317 N.Y.S.2d 985 (2nd Dept. 1970); and see 12 Carmody-Wait 2d, NY Prac, 78:23, pp 71-72. In this case, Plaintiff has demonstrated his right to a preliminary injunction under both CPLR § 6301 and the relevant case law. Pursuant to CPLR § 6301 Plaintiff is entitled to injunctive relief under both circumstances provided for therein. First, injunctive relief is appropriate “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.” CPLR § 6301. Defendant’s egregious acts of causing damage are not isolated or occasional, rather systematic and long running. Defendant is utterly unconcerned about the damage her actions represent for the communities and individuals who have to live every day with the consequences. Defendant’s actions have and continue to cause substantial damage to Plaintiff’s property. The damage to Plaintiff’s property as a direct result of Defendant’s wilful 3 3 of 6 FILED: NEW YORK COUNTY CLERK 08/29/2023 04:32 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/29/2023 negligence includes but not limited to, structural damage, water damage at the roof level, Raccoon infestation, water damage from burst pipes at the basement level, nuisance from unauthorized and unmonitored occupancy, nuisance from overall lack of maintenance, lack of sidewalk shoveling and nuisance from scaffolding. There are cracks in the ceiling and wall, resulting from distress coming from Defendant’s property. The cracks in the plaster of ceiling and wall are occurring due to the sequential collapse of adjacent roof joists in Defendant’s property. The stress in the roof structure of Plaintiff’s home, caused by the structural instability of the Defendant’s building, has caused water ingress. In February 2019 the water pipes in Defendant’s basement burst, first flooding the entire basement of Defendant’s, and then making its way into Plaintiff’s basement. There has been scaffolding in front of Defendant’s property for months. These scaffolding covers Plaintiff’s building, including the windows. It also provides refuge to unwanted guests of both animal and human persuasion. Defendant, Department of Building has issued a demolition order for Defendant Lisa’s building which will have negative impact on Plaintiff’s building and other buildings in the Historic Hamilton Heights neighborhood. Upon information and belief, the demolition order in effect for Defendant, Lisa’s building is currently on hold. As stated in Plaintiff’s affidavit, Defendant, Lisa’s building can be restored without demolition and in a manner safe to all neighboring buildings, including the one belonging to Plaintiff. As stated in Plaintiff’s affidavit, the brick structure of 451 Property is sound, even though the timber structure is in an advanced state of decay. As stated in Plaintiff’s affidavit, brick being the primary load bearing structure, as such there is no risk of collapse, and no need for demolition. The Plaintiff being a licensed architect and having restored his own, almost identical, home, can professionally attest to the fact that 451 Property can be restored to good health. 4 4 of 6 FILED: NEW YORK COUNTY CLERK 08/29/2023 04:32 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/29/2023 Plaintiffs are entitlement to a temporary restraining order and a preliminary injunction because there is a Plaintiffs can demonstrate: (1) a likelihood of success on the merits; (2) irreparable harm; and (3) a balancing of the equities mandates the Court grant an order temporarily enjoining Defendants and requiring them to protect and return Plaintiffs’ funds. POINT II PLAINTIFF IS LIKELY TO SUCCEED ON THE MERITS Likelihood of Success on the Merits Plaintiff is likely to prevail as Defendant Lisa has undoubtedly failed to care for her building resulting in damage to Plaintiff’s property. Even Defendant, Department of Building has a pending lawsuit against Defendant Lisa due to her failure to protect her property. Irreparable Harm In absence of a court order directing a stoppage on any demolition of the building located at 451 Property and further requirement of protecting Plaintiff’s property damage due to Defendants’ actions, Plaintiff will suffer irreparable harm. Balancing of the Equities A balance of the equities clearly tips heavily in favor of Plaintiff. No prejudice will come to Defendants if the Court grants the requested relief. 5 5 of 6 FILED: NEW YORK COUNTY CLERK 08/29/2023 04:32 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/29/2023 CONCLUSION For the foregoing reasons, Plaintiffs’ emergency order to show cause be granted in its entirety, along with such and further relief as the court deems proper. Dated: August 3, 2023 New York, NY Singh & Rani, LLP By: _______________________________ REENA RANI, ESQ. Attorneys for Plaintiff 5 Penn Plaza, 23rd Floor New York, NY 10001 212-729-6920 rrani@singhranilaw.com 6 6 of 6