Famo, Inc. v. Green 521 Fifth Avenue LLC

May 27, 2008
Versions:51 A.D.3d 578
859 N.Y.S.2d 131

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered September 25, 2007, which denied plaintiff‘s motion for a preliminary injunction, and order, same court and Justice, entered January 15, 2008, which, upon granting plaintiff‘s motion for reargument, adhered to the prior ruling and lifted all stays, unanimously affirmed, without costs.

As part of its lobby renovation, defendant landlord planned to install a floating wall near the entrance to plaintiff tenant‘s art gallery, which would interfere with certain sight lines. In seeking a preliminary injunction, plaintiff failed to meet its burden of demonstrating a likelihood of success on the merits, irreparable injury unless the relief sought is granted, and a balancing of the equities in its favor (see W.T. Grant Co. v Srogi, 52 NY2d 496, 517 [1981]). The unambiguous language of the lease provided that the demised space was to be used solely as a gallery for the benefit of the building tenants. The court properly found that the loss of visibility from certain vantage points did not render the space unusable for its purpose. Furthermore, any loss would be compensable by monetary damages (see Credit Index v RiskWise Intl., 282 AD2d 246 [2001]).

We have considered the balance of plaintiff‘s argument and find it without merit. Concur—Andrias, J.P., Saxe, Sweeny, Moskowitz and DeGrasse, JJ. [See 17 Misc 3d 1108(A), 2007 NY Slip Op 51870(U).]