Preview
FILED: ROCKLAND COUNTY CLERK 04/21/2024 12:31 PM INDEX NO. 031292/2023
NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 04/21/2024
EXHIBIT “C"
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05/03/2023
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
________________________________..____________Ç
CHARLES COLLISHAW; COLLISHAW AND Index No. 031292/2023
COLLISHAW INC., doing business as DEAN
CUSTOM AWNINGS AND FLAG DECORATING
and 171 NO. PASCACK RD CORP., AFFIRMATION OF
BRIAN K. CONDON
Plaintiffs, PURSUANT TO
UNIFORM RULE 202.7(f)
-against-
A NU U INJECTABLES, LLC and CHRISTINA
MILIZIA i/s/h/a CHRISTINA MILIVIA,
Defendants.
_________________________________________Ç
BRIAN K. CONDON, an attorney duly admitted to the practice of law in New York
State, does hereby affirm the following to be true under the penalty of perjury.
1. I am a member of the law firm of Condon Paxos PLLC, attorneys for
Defendants, A Nu U Injectables, LLC and Christina Milizia in this action. I am fully familiar
with the facts and circumstances surrounding this matter based upon a review of the file
maintained by this office in the ordinary course of business and discussions with my client.
2. This Affirmation is being submitted pursuant to Uniform Rule 202.7(f) because
the Plaintiff is submitting an Order to Show Cause on Tuesday, May 2, 2023 at 9:30AM before a
Judge to be assigned by the Clerk of the Court seeking a preliminary injunction with temporary
restraining order.
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Plaintiffs'
3. On Monday, May 1st, an e-mail was sent to counsel, advising him of
the date and time of the instant application. A copy of the e-mail is annexed hereto as Exhibit
"A"
Dated: Nanuet, New York 7
May 1, 2023
Brian K. Condon
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Word Count Certification
The total number of words in the foregoing brief, memorandum, affirmation or affidavit
exclusive of point headings and footnotes and exclusive of the caption, table of contents, table of
authorities, proof of service, certificate of compliance, or any authorized addendum containing
statutes, rules, regulations, etc. is 245.
The document complies with the applicable word count limit and is based on the word
count of the word-processing system used to prepare the document.
Dated: May 1, 2023 CONDO PAXOS PL
By:
an K. Condon
Attorneys for Defendants
55 Old Turnpike Road, Suite 502
Nanuet, New York 10954
(845) 627-8500
Brian@CondonPaxos.com
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"A"
Exhibit
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05/01/2023
Brian K. Condon
From: Brian K. Condon
Sent: Monday, May 1, 2023 10:10 AM
To: Matthew Lizotte
Cc: Donald Feerick
Subject: RE: A Nu U Injectables, LLC d/b/a A Nu U Aesthetics adv. 171 No. Pascack Road Corp.
Counselors,
Good morning. I will be presenting an OSC w/ TRO to the Court tomorrow, May 2, 2023, at
10:00AM for consideration in your client from operating at his premises. I will get
stopping
you my papers as soon as they are drafted. I will advise you of the Judge who is assigned to the
case assuming that you would like to be heard on our application.
Respectfully,
Brian K. Condon, Esq.
CONDON
PAXOSPete
ATTORNEYS \T LAW
55 Old Turnpike Road,Suite 502 - Nanuet, New York 10954
845.627.8500x101phone - 845.627.8507 fax
e-mail: Brian@CondonPaxos.com
website: www.CondonPaxos.com
NOTE:THISEMAILANDANYATTACHMENTS
CONFIDENTIALITY THERETOARECONFIDENTIAL BYLEGALPRIVILEGE.
ANDMAYBEPROTECTED IF YOUARENOTTHEINTENDED
RECIPIENT,BEAWARETHATANYDISCLOSURE,COPYiNG,DISTRIBUTION
ORUSEOFTHISEMAILORANYATTACHMENT
ISPROHIBITED.
IF YOUHAVERECElVEDTHISEMAILIN ERROR,
PLEASENOTIFYUSIMMEDIATELYBYRETURNINGITTOTHESENDERANDDELETETHISCOPYFROMYOURSYSTEM.THANKYOUFORYOURCOOPERATION
1
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
__________________________________________________________________Ç
CHARLES COLLISHAW; COLLISHAW AND Index No. 031292/2023
COLLISHAW INC., doing business as DEAN
CUSTOM AWNINGS AND FLAG DECORATING
and 171 NO. PASCACK RD CORP., AFFIRMATION OF
BRIAN K. CONDON
Plaintiffs, IN SUPPORT OF ORDER
TO SHOW CAUSE
-against-
A NU U INJECTABLES, LLC and CHRISTINA
MILIZIA i/s/h/a CHRISTINA MILIVIA,
Defendants.
__________________________________________________________________Ç
BRIAN K. CONDON, an attorney duly licensed to practice in the State ofNew York, affirms
the following under the penalties of perjury:
1. I am a member of CONDON PAXOS PLLC, attorneys for Defendants', A Nu U
Injectables, LLC and Christina Milizia, in the above referenced matter. I am fully familiar with the
facts and circumstances surrounding this matter based upon a review of the file maintained by this
office in the ordinary course of business and discussions with our clients.
Defendants'
2. I submit this Affidavit in Support of the relief sought in the Order to
Defendants'
Show Cause of which is to, in relevant part: (1) restrain and enjoin Charles Collishaw,
Collishaw and Collishaw, Inc. d/b/a Dean Custom Awnings and Flag Decorating and/or 171 No.
Pascack Rd Corp. from undertaking any actions which are (i) in violation of the Town Code for the
Town of Clarkstown; (ii) in violation of any Notices of Violation/Stop Work Order issued by the
Town of Clarkstown; (iii) a breach of the Tenant's Warranty of Habitability; (2) staying the Notice
of Termination dated April 28, 2023 pending the determination of the instant action brought by
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A. Temporary Restraining Order Standard
5. A temporary restraining order is warranted here. A temporary restraining order
may be granted pending a hearing for a preliminary injunction where it appears that immediate
and irreparable injury, loss, or damage will result unless the defendant is restrained before the
hearing can be had. N.Y. CPLR §§ 6301, 6313.
6. Here, Defendants are already suffering irreparable injury, loss, and damage as a
result of the actions of Plaintiff's namely, the tenant and operator of the awning business, DCA,
which is owned by Charles Collishaw who also happens to be the owner of the Landlord, 171 No.
Pascack Rd Corp.
7. As set forth in the accompanying Affidavit of Christina Milizia, Plaintiff DCA have
purposefully ignored the Notice of Violation of the Town of Clarkstown who notified DCA that it
was in violation of the Town Code as it is not permitted to operate as an accessory business in the
Light Shopping District.
B. Preliminary Injunction Standard
8. A preliminary injunction is also warranted. A preliminary injunction may be
granted in any action where it appears that a party threatens or is about to do, or is doing or procuring
or suffering to be done, an act in violation of the rights of the moving party respecting the subject
of the action. N.Y. CPLR § 6301.
9. The purpose of a preliminary injunction is to preserve the status quo pending a
hearing or trial. Fischer v. Deitsch, 168 A.D.2d 599, 563 N.Y.S.2d 836 (2d Dept. 1990).
10. To obtain a preliminary injunction, the movant must demonstrate: (1) a likelihood
or probability of success on the merits, (2) irreparable harm if the injunction is denied, and (3) a
-3-
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balance of the equities in favor of granting the injunction. Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860
(1990); Manhattan Real Estate Equities Group LLC v. Pine Equity, NY, Inc., 16 A.D.3d 292 (1st
Dept. 2005).
11. The Defendants have demonstrated all of the criteria required to obtain a preliminary
injunction.
1. A Likelihood of Ultimate Success on the Merits
12. With respect to the requirement that the moving party show a likelihood of
success on the merits, it is sufficient that a prima facie showing is made of a right to relief.
McLaughlin, Piven, Vogel, Inc. v. W.J. Nolan & Co. Inc., 114 A.D.2d 165 (2nd Dept. 1986).
Plaintiffs'
13. Defendants have clearly shown that, by own actions, they have violated
not only the laws and/or codes of the Town of Clarkstown, they have breached the Tenant's Warrant
of Habitability by causing the noises and cancer causing particles by cutting galvanized steel in an
area not zoned for such activities and most certainly have not provided protections to the Defendants
or fellow tenants at the Demised Premises.
2. Irreparable Harm Unless the Injunction is Granted
14. With respect to the showing of irreparable harm if the preliminary injunction is
Defendants'
not granted, the have most certainly established that the conduct of the Plaintiffs are
causing irreparable harm.
3. A Balancing of the Equities
15. Towards this end, the facts set forth in the accompanying Affidavit of Christina
Milizia and the exhibits annexed thereto, demonstrate that Defendant is already suffering from
Plaintiffs'
irreparable harm, as have been improperly running October Hill LLC with a complete
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disregard of Plaintiff's $425,000 investment and/or 25% ownership in the same.
16. The damages flowing as described herein result are clearly and solely from the
actions of Plaintiffs, namely DCA. As a result, the equities are clearly balanced in favor of
Defendants herein.
POINT II: DEFENDANT IS ENTITLED TO A YELLOWSTONE STAY
17. As is set forth in the accompanying Affidavit of Christina Milizia, the Plaintiff
Landlord, only sought to send deficiency notices to the Defendant Tenant once the Defendant Tenant
made complaints to the local authorities about DCA's illegal activities below where Defendants were
operating her MedSpa.
18. Prior to February 16, 2023, the Defendant made complaints to the Town of
Clarkstown Building Inspector.
19. On February 16, 2023, the Clarkstown Building Inspector issued a Notice of
Plaintiffs'
Violation to the for using their space in a manner not permitted by an approved building
permit or certificate of occupancy (See Exhibit "I").
20. Specifically, the violation claimed that the awning company is in violation of Town
Zoning code Section 290, Attachment 24, Table 5, Column 8, Item 10 (See Exhibit "J")
21. On February 27, 2023, after the Notice of Violation was issued, the PlaintiffLandlord
served a Notice of Lease Violations against the Tenant (See Exhibit "N").
22. On March 7, 2023, Defendant Tenant's prior counsel responded to the baseless and
harassing Notice of Violation (See Exhibit "O").
23. The Plaintiff brought this instant lawsuit on March 27, 2023.
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"P"
24. The Defendants Answered on April 25, 2023 (See Exhibit NYSCEF Doc. No.
Defendants'
5). The answer contained Counterclaims against the Plaintiffs.
25. On April 28, 2023, three (3) days after filing of the Answer with Counterclaims, the
Plaintiff Landlord served a Notice of Termination of Lease upon the Tenant (See Exhibit "Q")
26. On May 1, 2023, the Defendants filed an Amended Answer with Counterclaims
adding a Declaratory Judgment cause of action to ask for judicial determination if the Defendant
- a contention Defendants'
Tenant actually breached the Lease that the vehemently deny (See Exhibit
"R"
NYSCEF Doc. No. 6).
27. It is clear that the purpose of the Plaintiff Landlord's Notice of Termination is mere
harassment.
28. For the foregoing reasons, the Defendant Tenant should be afforded a Yellowstone
Stay.
29. "In keeping with public policy against forfeiture, courts grant Yellowstone relief on
relief'
'far less than the normal showing required for preliminary injunctive (see Elite Wine & Spirt
(1St
LLC v. Michelangelo Preservation LLC, 213 A.D.3d 143, 183 N.Y.S.3d 381 Dept. 2023).
30. The tenant need only demonstrate that (1) it holds a lease; (2) it received a notice of
default, notice to cure, or threat to terminate the lease; (3) it requested injunctive relief prior to the
termination of the lease or expiration of the cure period; and (4) it is prepared to cure the alleged
default by any means short of vacating the premises (See Graubard Mollen Horowitz Pomeranz &
Shapiro v. 600 Third Ave. Assoc., 93 N.Y.2d 508, 693 N.Y.S.2d 91 (1999); Three Amigos SJL Rest.
(13t
Inc. v. 250 W. 43 Owner LLC, 144 A.D.3d 490, 41 N.Y.S.3d 224 Dept. 2016), appeal dismissed
29 N.Y.3d 1089, 64 N.Y.S.3d 164 (2017).
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31. Once the tenant establishes these elements, the motion court may exercise its
discretion to issue a Yellowstone injunction tolling the tenant's time to cure. Elite Wine & Spirt LLC
(1"
v. Michelangelo Preservation LLC, 213 A.D.3d 143, 183 N.Y.S.3d 381 Dept. 2023).
32. In the case at bar, the Defendant Tenant has shown the establishment of a valid lease,
that it received a notice of violation (2/27/23), responded to establish that it was not in default and/or
that said violations were cured (3/7/23), and that the instant application seeking a Yellowstone
injunction was made timely and as the notice of termination (setting a June, 2023 termination date)
was only served on April 28, 2023, and that the Defendant Tenant has set forth in her accompanying
Affidavit that, should the Court find there were in default, a contention that she vehemently disputes,
the Defendant Tenant would cure said violation.
Plaintiffs'
33. Therefore, this Honorable Court should not let the harassment of the
whistle"
Defendant Tenant continue because she "blew the and caused the Plaintiff to receive a
Notice of Violation from the Town of Clarkstown. A Yellowstone injunction should immediately
issue.
34. For the foregoing reasons, and those espoused in the accompanying Affidavit of
Defendants' Plaintiffs'
Christina Milizia, the motion seeking an injunction as against the should be
granted in its entirety and/or for any other and further relief as to this Court seems just and proper.
35. No prior application has been made for the relief sought herein.
WHEREFORE, for the reasons set forth above and in the accompanying Affidavit of
Defendants'
Christina Milizia and those papers previously submitted, the respectfully request
that the Court grant the instant application by Order to Show Cause in its entirety, with such
other and further relief as the Court deems just, proper, and equitable.
Dated: Nanuet, New York
May 1, 2023
Brian K. Condon
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Word Count Certification
The total number of words in the foregoing brief, memorandum, affirmation or affidavit
exclusive of point headings and footnotes and exclusive of the caption, table of contents, table of
authorities, proof of service, certificate of compliance, or any authorized addendum containing
statutes, rules, regulations, etc. is 1,875.
The document complies with the applicable word count limit and is based on the word
Preview
FILED: ROCKLAND COUNTY CLERK 04/21/2024 12:31 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 04/21/2024 EXHIBIT “C" FILED: ROCKLAND COUNTY CLERK 04/21/2024 05/03/2023 12:31 04:20 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 114 32 RECEIVED NYSCEF: 04/21/2024 05/03/2023 1 of 4 FILED: ROCKLAND COUNTY CLERK 04/21/2024 05/03/2023 12:31 04:20 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 114 32 RECEIVED NYSCEF: 04/21/2024 05/03/2023 2 of 4 FILED: ROCKLAND COUNTY CLERK 04/21/2024 05/03/2023 12:31 04:20 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 114 32 RECEIVED NYSCEF: 04/21/2024 05/03/2023 3 of 4 FILED: ROCKLAND COUNTY CLERK 04/21/2024 05/03/2023 12:31 04:20 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 114 32 RECEIVED NYSCEF: 04/21/2024 05/03/2023 4 of 4 FILED: ROCKLAND COUNTY CLERK 04/21/2024 05/01/2023 12:31 08:30 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 114 28 RECEIVED NYSCEF: 04/21/2024 05/01/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ________________________________..____________Ç CHARLES COLLISHAW; COLLISHAW AND Index No. 031292/2023 COLLISHAW INC., doing business as DEAN CUSTOM AWNINGS AND FLAG DECORATING and 171 NO. PASCACK RD CORP., AFFIRMATION OF BRIAN K. CONDON Plaintiffs, PURSUANT TO UNIFORM RULE 202.7(f) -against- A NU U INJECTABLES, LLC and CHRISTINA MILIZIA i/s/h/a CHRISTINA MILIVIA, Defendants. _________________________________________Ç BRIAN K. CONDON, an attorney duly admitted to the practice of law in New York State, does hereby affirm the following to be true under the penalty of perjury. 1. I am a member of the law firm of Condon Paxos PLLC, attorneys for Defendants, A Nu U Injectables, LLC and Christina Milizia in this action. I am fully familiar with the facts and circumstances surrounding this matter based upon a review of the file maintained by this office in the ordinary course of business and discussions with my client. 2. This Affirmation is being submitted pursuant to Uniform Rule 202.7(f) because the Plaintiff is submitting an Order to Show Cause on Tuesday, May 2, 2023 at 9:30AM before a Judge to be assigned by the Clerk of the Court seeking a preliminary injunction with temporary restraining order. 1 of 5 FILED: ROCKLAND COUNTY CLERK 04/21/2024 05/01/2023 12:31 08:30 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 114 28 RECEIVED NYSCEF: 04/21/2024 05/01/2023 Plaintiffs' 3. On Monday, May 1st, an e-mail was sent to counsel, advising him of the date and time of the instant application. A copy of the e-mail is annexed hereto as Exhibit "A" Dated: Nanuet, New York 7 May 1, 2023 Brian K. Condon 2 of 5 FILED: ROCKLAND COUNTY CLERK 04/21/2024 05/01/2023 12:31 08:30 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 114 28 RECEIVED NYSCEF: 04/21/2024 05/01/2023 Word Count Certification The total number of words in the foregoing brief, memorandum, affirmation or affidavit exclusive of point headings and footnotes and exclusive of the caption, table of contents, table of authorities, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 245. The document complies with the applicable word count limit and is based on the word count of the word-processing system used to prepare the document. Dated: May 1, 2023 CONDO PAXOS PL By: an K. Condon Attorneys for Defendants 55 Old Turnpike Road, Suite 502 Nanuet, New York 10954 (845) 627-8500 Brian@CondonPaxos.com 3 of 5 FILED: ROCKLAND COUNTY CLERK 04/21/2024 05/01/2023 12:31 08:30 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 114 28 RECEIVED NYSCEF: 04/21/2024 05/01/2023 "A" Exhibit 4 of 5 FILED: ROCKLAND COUNTY CLERK 04/21/2024 05/01/2023 12:31 08:30 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 114 28 RECEIVED NYSCEF: 04/21/2024 05/01/2023 Brian K. Condon From: Brian K. Condon Sent: Monday, May 1, 2023 10:10 AM To: Matthew Lizotte Cc: Donald Feerick Subject: RE: A Nu U Injectables, LLC d/b/a A Nu U Aesthetics adv. 171 No. Pascack Road Corp. Counselors, Good morning. I will be presenting an OSC w/ TRO to the Court tomorrow, May 2, 2023, at 10:00AM for consideration in your client from operating at his premises. I will get stopping you my papers as soon as they are drafted. I will advise you of the Judge who is assigned to the case assuming that you would like to be heard on our application. Respectfully, Brian K. Condon, Esq. CONDON PAXOSPete ATTORNEYS \T LAW 55 Old Turnpike Road,Suite 502 - Nanuet, New York 10954 845.627.8500x101phone - 845.627.8507 fax e-mail: Brian@CondonPaxos.com website: www.CondonPaxos.com NOTE:THISEMAILANDANYATTACHMENTS CONFIDENTIALITY THERETOARECONFIDENTIAL BYLEGALPRIVILEGE. ANDMAYBEPROTECTED IF YOUARENOTTHEINTENDED RECIPIENT,BEAWARETHATANYDISCLOSURE,COPYiNG,DISTRIBUTION ORUSEOFTHISEMAILORANYATTACHMENT ISPROHIBITED. IF YOUHAVERECElVEDTHISEMAILIN ERROR, PLEASENOTIFYUSIMMEDIATELYBYRETURNINGITTOTHESENDERANDDELETETHISCOPYFROMYOURSYSTEM.THANKYOUFORYOURCOOPERATION 1 5 of 5 FILED: ROCKLAND COUNTY CLERK 04/21/2024 05/01/2023 12:31 08:30 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 114 27 RECEIVED NYSCEF: 04/21/2024 05/01/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND __________________________________________________________________Ç CHARLES COLLISHAW; COLLISHAW AND Index No. 031292/2023 COLLISHAW INC., doing business as DEAN CUSTOM AWNINGS AND FLAG DECORATING and 171 NO. PASCACK RD CORP., AFFIRMATION OF BRIAN K. CONDON Plaintiffs, IN SUPPORT OF ORDER TO SHOW CAUSE -against- A NU U INJECTABLES, LLC and CHRISTINA MILIZIA i/s/h/a CHRISTINA MILIVIA, Defendants. __________________________________________________________________Ç BRIAN K. CONDON, an attorney duly licensed to practice in the State ofNew York, affirms the following under the penalties of perjury: 1. I am a member of CONDON PAXOS PLLC, attorneys for Defendants', A Nu U Injectables, LLC and Christina Milizia, in the above referenced matter. I am fully familiar with the facts and circumstances surrounding this matter based upon a review of the file maintained by this office in the ordinary course of business and discussions with our clients. Defendants' 2. I submit this Affidavit in Support of the relief sought in the Order to Defendants' Show Cause of which is to, in relevant part: (1) restrain and enjoin Charles Collishaw, Collishaw and Collishaw, Inc. d/b/a Dean Custom Awnings and Flag Decorating and/or 171 No. Pascack Rd Corp. from undertaking any actions which are (i) in violation of the Town Code for the Town of Clarkstown; (ii) in violation of any Notices of Violation/Stop Work Order issued by the Town of Clarkstown; (iii) a breach of the Tenant's Warranty of Habitability; (2) staying the Notice of Termination dated April 28, 2023 pending the determination of the instant action brought by -1- 1 of 7 FILED: ROCKLAND COUNTY CLERK 04/21/2024 05/01/2023 12:31 08:30 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 114 27 RECEIVED NYSCEF: 04/21/2024 05/01/2023 A. Temporary Restraining Order Standard 5. A temporary restraining order is warranted here. A temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss, or damage will result unless the defendant is restrained before the hearing can be had. N.Y. CPLR §§ 6301, 6313. 6. Here, Defendants are already suffering irreparable injury, loss, and damage as a result of the actions of Plaintiff's namely, the tenant and operator of the awning business, DCA, which is owned by Charles Collishaw who also happens to be the owner of the Landlord, 171 No. Pascack Rd Corp. 7. As set forth in the accompanying Affidavit of Christina Milizia, Plaintiff DCA have purposefully ignored the Notice of Violation of the Town of Clarkstown who notified DCA that it was in violation of the Town Code as it is not permitted to operate as an accessory business in the Light Shopping District. B. Preliminary Injunction Standard 8. A preliminary injunction is also warranted. A preliminary injunction may be granted in any action where it appears that a party threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the rights of the moving party respecting the subject of the action. N.Y. CPLR § 6301. 9. The purpose of a preliminary injunction is to preserve the status quo pending a hearing or trial. Fischer v. Deitsch, 168 A.D.2d 599, 563 N.Y.S.2d 836 (2d Dept. 1990). 10. To obtain a preliminary injunction, the movant must demonstrate: (1) a likelihood or probability of success on the merits, (2) irreparable harm if the injunction is denied, and (3) a -3- 2 of 7 FILED: ROCKLAND COUNTY CLERK 04/21/2024 05/01/2023 12:31 08:30 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 114 27 RECEIVED NYSCEF: 04/21/2024 05/01/2023 balance of the equities in favor of granting the injunction. Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860 (1990); Manhattan Real Estate Equities Group LLC v. Pine Equity, NY, Inc., 16 A.D.3d 292 (1st Dept. 2005). 11. The Defendants have demonstrated all of the criteria required to obtain a preliminary injunction. 1. A Likelihood of Ultimate Success on the Merits 12. With respect to the requirement that the moving party show a likelihood of success on the merits, it is sufficient that a prima facie showing is made of a right to relief. McLaughlin, Piven, Vogel, Inc. v. W.J. Nolan & Co. Inc., 114 A.D.2d 165 (2nd Dept. 1986). Plaintiffs' 13. Defendants have clearly shown that, by own actions, they have violated not only the laws and/or codes of the Town of Clarkstown, they have breached the Tenant's Warrant of Habitability by causing the noises and cancer causing particles by cutting galvanized steel in an area not zoned for such activities and most certainly have not provided protections to the Defendants or fellow tenants at the Demised Premises. 2. Irreparable Harm Unless the Injunction is Granted 14. With respect to the showing of irreparable harm if the preliminary injunction is Defendants' not granted, the have most certainly established that the conduct of the Plaintiffs are causing irreparable harm. 3. A Balancing of the Equities 15. Towards this end, the facts set forth in the accompanying Affidavit of Christina Milizia and the exhibits annexed thereto, demonstrate that Defendant is already suffering from Plaintiffs' irreparable harm, as have been improperly running October Hill LLC with a complete -4- 3 of 7 FILED: ROCKLAND COUNTY CLERK 04/21/2024 05/01/2023 12:31 08:30 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 114 27 RECEIVED NYSCEF: 04/21/2024 05/01/2023 disregard of Plaintiff's $425,000 investment and/or 25% ownership in the same. 16. The damages flowing as described herein result are clearly and solely from the actions of Plaintiffs, namely DCA. As a result, the equities are clearly balanced in favor of Defendants herein. POINT II: DEFENDANT IS ENTITLED TO A YELLOWSTONE STAY 17. As is set forth in the accompanying Affidavit of Christina Milizia, the Plaintiff Landlord, only sought to send deficiency notices to the Defendant Tenant once the Defendant Tenant made complaints to the local authorities about DCA's illegal activities below where Defendants were operating her MedSpa. 18. Prior to February 16, 2023, the Defendant made complaints to the Town of Clarkstown Building Inspector. 19. On February 16, 2023, the Clarkstown Building Inspector issued a Notice of Plaintiffs' Violation to the for using their space in a manner not permitted by an approved building permit or certificate of occupancy (See Exhibit "I"). 20. Specifically, the violation claimed that the awning company is in violation of Town Zoning code Section 290, Attachment 24, Table 5, Column 8, Item 10 (See Exhibit "J") 21. On February 27, 2023, after the Notice of Violation was issued, the PlaintiffLandlord served a Notice of Lease Violations against the Tenant (See Exhibit "N"). 22. On March 7, 2023, Defendant Tenant's prior counsel responded to the baseless and harassing Notice of Violation (See Exhibit "O"). 23. The Plaintiff brought this instant lawsuit on March 27, 2023. -5- 4 of 7 FILED: ROCKLAND COUNTY CLERK 04/21/2024 05/01/2023 12:31 08:30 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 114 27 RECEIVED NYSCEF: 04/21/2024 05/01/2023 "P" 24. The Defendants Answered on April 25, 2023 (See Exhibit NYSCEF Doc. No. Defendants' 5). The answer contained Counterclaims against the Plaintiffs. 25. On April 28, 2023, three (3) days after filing of the Answer with Counterclaims, the Plaintiff Landlord served a Notice of Termination of Lease upon the Tenant (See Exhibit "Q") 26. On May 1, 2023, the Defendants filed an Amended Answer with Counterclaims adding a Declaratory Judgment cause of action to ask for judicial determination if the Defendant - a contention Defendants' Tenant actually breached the Lease that the vehemently deny (See Exhibit "R" NYSCEF Doc. No. 6). 27. It is clear that the purpose of the Plaintiff Landlord's Notice of Termination is mere harassment. 28. For the foregoing reasons, the Defendant Tenant should be afforded a Yellowstone Stay. 29. "In keeping with public policy against forfeiture, courts grant Yellowstone relief on relief' 'far less than the normal showing required for preliminary injunctive (see Elite Wine & Spirt (1St LLC v. Michelangelo Preservation LLC, 213 A.D.3d 143, 183 N.Y.S.3d 381 Dept. 2023). 30. The tenant need only demonstrate that (1) it holds a lease; (2) it received a notice of default, notice to cure, or threat to terminate the lease; (3) it requested injunctive relief prior to the termination of the lease or expiration of the cure period; and (4) it is prepared to cure the alleged default by any means short of vacating the premises (See Graubard Mollen Horowitz Pomeranz & Shapiro v. 600 Third Ave. Assoc., 93 N.Y.2d 508, 693 N.Y.S.2d 91 (1999); Three Amigos SJL Rest. (13t Inc. v. 250 W. 43 Owner LLC, 144 A.D.3d 490, 41 N.Y.S.3d 224 Dept. 2016), appeal dismissed 29 N.Y.3d 1089, 64 N.Y.S.3d 164 (2017). -6- 5 of 7 FILED: ROCKLAND COUNTY CLERK 04/21/2024 05/01/2023 12:31 08:30 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 114 27 RECEIVED NYSCEF: 04/21/2024 05/01/2023 31. Once the tenant establishes these elements, the motion court may exercise its discretion to issue a Yellowstone injunction tolling the tenant's time to cure. Elite Wine & Spirt LLC (1" v. Michelangelo Preservation LLC, 213 A.D.3d 143, 183 N.Y.S.3d 381 Dept. 2023). 32. In the case at bar, the Defendant Tenant has shown the establishment of a valid lease, that it received a notice of violation (2/27/23), responded to establish that it was not in default and/or that said violations were cured (3/7/23), and that the instant application seeking a Yellowstone injunction was made timely and as the notice of termination (setting a June, 2023 termination date) was only served on April 28, 2023, and that the Defendant Tenant has set forth in her accompanying Affidavit that, should the Court find there were in default, a contention that she vehemently disputes, the Defendant Tenant would cure said violation. Plaintiffs' 33. Therefore, this Honorable Court should not let the harassment of the whistle" Defendant Tenant continue because she "blew the and caused the Plaintiff to receive a Notice of Violation from the Town of Clarkstown. A Yellowstone injunction should immediately issue. 34. For the foregoing reasons, and those espoused in the accompanying Affidavit of Defendants' Plaintiffs' Christina Milizia, the motion seeking an injunction as against the should be granted in its entirety and/or for any other and further relief as to this Court seems just and proper. 35. No prior application has been made for the relief sought herein. WHEREFORE, for the reasons set forth above and in the accompanying Affidavit of Defendants' Christina Milizia and those papers previously submitted, the respectfully request that the Court grant the instant application by Order to Show Cause in its entirety, with such other and further relief as the Court deems just, proper, and equitable. Dated: Nanuet, New York May 1, 2023 Brian K. Condon -7- 6 of 7 FILED: ROCKLAND COUNTY CLERK 04/21/2024 05/01/2023 12:31 08:30 PM INDEX NO. 031292/2023 NYSCEF DOC. NO. 114 27 RECEIVED NYSCEF: 04/21/2024 05/01/2023 Word Count Certification The total number of words in the foregoing brief, memorandum, affirmation or affidavit exclusive of point headings and footnotes and exclusive of the caption, table of contents, table of authorities, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 1,875. The document complies with the applicable word count limit and is based on the word