Motichka v. MP 1291 Trust , 23 N.Y.S.3d 892 ( 2016 )

Motichka v MP 1291 Trust (2016 NY Slip Op 00776)

Motichka v MP 1291 Trust

2016 NY Slip Op 00776

Decided on February 4, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 4, 2016
Tom, J.P., Friedman, Sweeny, Acosta, Andrias, JJ.

143N 160158/13

[*1]Joanne Motichka, Plaintiff-Appellant,

v

MP 1291 Trust, et al., Defendants-Respondents.

Russell A. Schindler, Kingston, for appellant.

Kaufman Friedman Plotnicki & Grun, LLP, New York (Howard Grun of counsel), for MP 1291 Trust, respondent.

Epstein, Becker & Green, P.C., New York (Aime Dempsey of counsel), for Eli's Bread, respondent.

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered January 17, 2014, which, after a hearing, denied plaintiff tenant's motion for a preliminary injunction, unanimously affirmed, without costs.

The motion court providently exercised its discretion in denying the motion (see Doe v Axelrod, 73 NY2d 748, 750 [1988]), where the evidence raises "sharp" issues of fact regarding plaintiff's noise and odor complaints, and the intent of the parties that drafted a 1999 stipulation (Residential Bd. of Mgrs. of Columbia Condominium v Alden, 178 AD2d 121, 123 [1st Dept 1991]; Lehey v Goldburt, 90 AD3d 410, 411 [1st Dept 2011]).

Plaintiff has not made the required showing for a preliminary injunction (see Doe, 73 NY2d at 750).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 4, 2016

CLERK