In the case entitled 19 Patchen, LLC v. Antonio Rodriguez, 153 A.D.3d 1382 (2nd Dept. 2017), the Appellate Division, Second Department affirmed the Supreme Court’s denial of a preliminary injunction, finding that the owner failed to meet his burden of proof.
The subject property, located at 19 Patchen Avenue, Brooklyn, New York (“Property”), includes a dry cleaner on the ground floor. Plaintiff, as part of its due diligence when deciding to purchase the Property, had a private company perform environmental testing. The test results indicated that the soil, soil vapor, indoor air, and groundwater were all impacted by dry cleaning solvents. Plaintiff decided nevertheless to proceed with purchasing the Property, offered the Defendant the opportunity to relocate, and subsequently served a 10-day notice to cure on the Defendant dry cleaner. Defendant apparently refused to relocate or cease operations to allow Plaintiff to remediate the contamination. Plaintiff commenced an action in court seeking injunction to prohibit Defendant from continuing to operate the dry cleaning business so that Plaintiff could remediate the contamination. The Supreme Court denied Plaintiff’s request for a preliminary injunction and the Appellate Division affirmed, finding in relevant part as follows:
“Here, the Supreme Court providently exercised its discretion in denying the plaintiff’s motion for a preliminary injunction. While disputed issues of fact alone will not justify the denial of a motion for a preliminary injunction (see CPLR 6312[c]), the plaintiff failed to establish a likelihood of ultimate success on the merits (see Joseph v Joseph, 108 AD3d 597, 598). The plaintiff also failed to establish irreparable injury absent the grant of the injunction, or that a balance of the equities was in its favor (see Town of Brookhaven v MMCCAS Holdings, Inc., 137 AD3d 1258, 1259).”
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