81 A.D.2d 783 | N.Y. App. Div. | 1981
— Order, Supreme Court, New York County, entered November 21, 1980, reversed, in the exercise of discretion, and motion for a preliminary injunction granted, with costs and disbursements. Plaintiff-appellant publisher occupies ground floor premises, used for storage of business related documents and papers. Defendants operate a restaurant immediately above. From time to time, defendants have permitted liquids of various kinds, comestible and otherwise, consisting of kitchen waste, to pour into plaintiff’s premises, with consequent damage. Defendants argue that this sort of leakage is not an enjoinable nuisance and that it is the responsibility of the landlord to contain it by waterproof flooring. However, as Special Term noted in a memorandum decision, a permanent injunction issued against similar practices in 1975. Indeed, Special Term suggested that plaintiff “may avail itself of the enforcement of the injunction”, explaining that plaintiff has an adequate remedy at law for money damages, but also suggesting that defendants had been less than careful. No reason is given why plaintiff is not entitled to a preventive remedy instead of being relegated to collecting damage after further injury, which may well be irreparable and uncompensable. Plaintiff has demonstrated probability of success and is entitled to the relief sought. Settle order to provide for an undertaking on the injunction. Concur — Kupferman, J. P., Ross, Carro, Markewich and Silverman, JJ.
