FILED: NEW YORK COUNTY CLERK 06/05/ :44 PM INDEX NO /2017 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 06/05/ PDF Free Download

FILED NEW YORK COUNTY CLERK 06/05/2017 0444 PM INDEX NO. 651440/2017 NYSCEF DOC. NO. 51 RECEIVED NYSCEF 06/05/2017 TABLE OF CONTENTS Page PRELIMINARY STATEMENT... 1 FACTS... 2 ARGUMENT... 2 A. Absent the Injunctive Relief, Landlord Will Suffer Irreparable Harm... 2 B. Landlord is Likely to Succeed on the Merits... 3 C. The Balance of the Equities Clearly Tips in Landlord s Favor... 4 CONCLUSION... 5 -i- 2 of 8

FILED NEW YORK COUNTY CLERK 06/05/2017 0444 PM INDEX NO. 651440/2017 NYSCEF DOC. NO. 51 RECEIVED NYSCEF 06/05/2017 TABLE OF AUTHORITIES Cases Page(s) Aetna Insurance Co. v. Capasso, 75 N.Y.2d 860 (1990)...2 BDC Mgmt. Servs., LLC v. Singer, 144 A.D.3d 597 (1st Dep t 2016)...2 Bell & Co., P.C. v. Rosen, 114 A.D.3d 411 (1st Dep t 2014)...2 Bingham v. Struve, 184 A.D.2d 85 (1st Dep t 1992)...3 Forty-Seventh-Fifth Co. v. Nektalov, 225 A.D.2d 343 (1st Dep t 1996)...3 Four Times Square Assocs., L.L.C. v. Cigna Investments, Inc., 306 A.D.2d 4 (1st Dep t 2003)... 2, 3 Invar Int'l, Inc. v. Zorlu Enerji Elektrik Uretim Anonim Sirketi, 86 A.D.3d 404 (1st Dep t 2011)...3 Klein, Wagner & Morris v. Lawrence A. Klein, P.C., 186 A.D.2d 631 (2d Dep t 1992)...4 McLaughlin, Piven, Vogel, Inc. v. W.J. Nolan & Co., 114 A.D.2d 165 (2d Dep t 1986)...4 Mostazafan Found. of N.Y. v. Rodeo Plaza Assocs., 151 A.D.2d 347 (1st Dep t 1989)...3 Promenade Condo. v. J.J.& P. Corp., 243 A.D.2d 293 (1st Dep t 1997)...3 Statutes CPLR 6301...2 -ii- 3 of 8

FILED NEW YORK COUNTY CLERK 06/05/2017 0444 PM INDEX NO. 651440/2017 NYSCEF DOC. NO. 51 RECEIVED NYSCEF 06/05/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X CITY CINEMAS, LLC, Plaintiff, -against- SOLOW BUILDING COMPANY, L.L.C., Defendant. X Index No. 651440/17 DEFENDANT S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR A PRELIMINARY INJUNCTION Defendant, Solow Building Company, L.L.C. ( Landlord ), submits this memorandum of law in support of its motion for an Order, pursuant to CPLR 6301, enjoining and restraining plaintiff, City Cinemas, LLC, and any and all of its members, managers, officers, directors, shareholders, employees, servants, agents, attorneys and all other persons and/or entities acting on behalf of or in concert with any or all of them (collectively, Tenant ), from operating or conducting any business in the subject premises it leased from Landlord in the subject building located at 4 West 58th Street a/k/a 4-8 West 57th Street, New York, New York (the Premises ) until all of the conditions set forth in the Notice to Cure dated February 16, 2017 are fully and completely repaired. 1 PRELIMINARY STATEMENT Landlord is entitled to the injunctive relief sought herein because it has satisfied the three part test to obtain such relief. Tenant has admitted that his has breached the parties lease, Landlord and the Building will suffer irreparable harm, absent the granting of the requested 1 All defined terms not defined herein have the same meaning ascribed to them in the accompanying affidavit of Steven Weymouth (the Weymouth Aff. ). 4 of 8

FILED NEW YORK COUNTY CLERK 06/05/2017 0444 PM INDEX NO. 651440/2017 NYSCEF DOC. NO. 51 RECEIVED NYSCEF 06/05/2017 injunctive relief, and the balance of the equities clearly favor Landlord. As such, Landlord s motion should be granted. FACTS For the sake of brevity, the Court is respectfully referred to the accompanying the Weymouth Aff. and emergency affirmation of Warren A. Estis. ARGUMENT Pursuant to CPLR 6301, a preliminary injunction may be granted 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. To obtain a preliminary injunction, a movant must establish (1) that irreparable injury will result unless the relief sought is granted; (2) a likelihood of success on the merits; and (3) a balance of equities tipping in the moving party s favor. Aetna Insurance Co. v. Capasso, 75 N.Y.2d 860, 862 (1990); BDC Mgmt. Servs., LLC v. Singer, 144 A.D.3d 597, 597 (1st Dep t 2016); Bell & Co., P.C. v. Rosen, 114 A.D.3d 411, 411 (1st Dep t 2014). As discussed below, Landlord has established each of the foregoing elements and as such, Landlord s motion should be granted. A. Absent the Injunctive Relief, Landlord Will Suffer Irreparable Harm Courts have found irreparable harm where a building s reputation will be damaged by virtue of a tenant s actions. Four Times Square Assocs., L.L.C. v. Cigna Investments, Inc., 306 A.D.2d 4, 6 (1st Dep t 2003)( Similarly, the threat to Four Times Square's good will and -2-5 of 8

FILED NEW YORK COUNTY CLERK 06/05/2017 0444 PM INDEX NO. 651440/2017 NYSCEF DOC. NO. 51 RECEIVED NYSCEF 06/05/2017 creditworthiness is sufficient to establish irreparable injury warranting the granting of injunctive relief ); Promenade Condo. v. J.J.& P. Corp., 243 A.D.2d 293, 293 (1st Dep t 1997)(lower quality of life for its residents and decreased property value deemed irreparable harm); Forty- Seventh-Fifth Co. v. Nektalov, 225 A.D.2d 343, 343 (1st Dep t 1996)(irreparable harm demonstrated where tenant s use of pullers-in was detrimental to the reputation of the building ); Mostazafan Found. of N.Y. v. Rodeo Plaza Assocs., 151 A.D.2d 347, 350 (1st Dep t 1989)(irreparable injury found where building s reputation would be damaged by tenant s window display practices ). Here, Landlord will suffer irreparable harm absent the granting of the motion. As established in the Weymouth Aff., the Theater is world renowned and a true New York City landmark. Weymouth Aff. at 3-7. The condition of the Theater s seating however, is in a deplorable state of disrepair. Weymouth Aff. at 12-13, 17-21; Exs. F, I. These breaches of the Lease by Tenant have tarnished and impaired and will continue to tarnish and impair, the first-class reputation and character of the Theater and the Building, as well as Landlord s goodwill. Weymouth Aff. at 21. B. Landlord is Likely to Succeed on the Merits With respect to this prong, Landlord need only make a prima facie showing that it will succeed. See Invar Int'l, Inc. v. Zorlu Enerji Elektrik Uretim Anonim Sirketi, 86 A.D.3d 404, 405 (1st Dep t 2011)( petitioners were able to show a likelihood of success on the merits by demonstrating that their claims have prima facie merit ); Four Times Square Assocs., L.L.C. v. Cigna Investments, Inc., 306 A.D.2d 4, 5, 764 N.Y.S.2d 1, 2 (1st Dep t 2003)( It is well settled that a likelihood of success on the merits may be sufficiently established even where the facts are in dispute and the evidence is inconclusive ); Bingham v. Struve, 184 A.D.2d 85, 88 (1st Dep t 1992)( likelihood of success does not mean a predetermination of the issues ); McLaughlin, -3-6 of 8

FILED NEW YORK COUNTY CLERK 06/05/2017 0444 PM INDEX NO. 651440/2017 NYSCEF DOC. NO. 51 RECEIVED NYSCEF 06/05/2017 Piven, Vogel, Inc. v. W.J. Nolan & Co., 114 A.D.2d 165, 172 73 (2d Dep t 1986)( a prima facie showing of a right to relief is sufficient; actual proof of the case should be left to further court proceedings ). Here, Landlord has made more than a prima facia showing that it is likely to succeed on the merits in this action. Indeed, Tenant has admitted that it breached the Lease as the Theater is in disrepair. Ex. H. C. The Balance of the Equities Clearly Tips in Landlord s Favor To establish that the balance of the equities favor Landlord, [i]t must be shown that the irreparable injury to be sustained is more burdensome to the [movant] than the harm caused to the [non-movant] through the imposition of the injunction. Klein, Wagner & Morris v. Lawrence A. Klein, P.C., 186 A.D.2d 631, 633 (2d Dep t 1992). Here, the balancing of the equities clearly favor Landlord. Tenant, pursuant to the express terms of the Lease, was under the obligation to take good care of the interior of the Premises. Ex. E. Tenant has admittedly failed comply with this obligation thereby causing serious damage to the Building s reputation. Ex. H. By requiring Tenant to close the Theater until the seating is repaired, Landlord s permanent interest in the Building will protected and the Building s reputation will be restored when re-opened. As for Tenant, this is a situation of Tenant s own making; it is the Tenant itself that will determine the length of any closure. -4-7 of 8

FILED NEW YORK COUNTY CLERK 06/05/2017 0444 PM INDEX NO. 651440/2017 NYSCEF DOC. NO. 51 RECEIVED NYSCEF 06/05/2017 CONCLUSION Based on the foregoing, Landlord's motion should be granted in its entirety, together with such further and additional relief as the Court deems just and proper. Dated I~Tew York, New York Respectfully submitted, June 5, 2017 ROSENBERG & ESTIS, P.C. Attorneys for Defendant By ~~W en A 733 Third A~nue New York, New York 10017 (212) 867-6000 WARREN A. ESTIS HOWARD W. KINGSLEY Of Counsel RE~76046\02302171531 v3-5- 8 of 8

FILED: NEW YORK COUNTY CLERK 06/05/ :44 PM INDEX NO /2017 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 06/05/2017