DUCK!!! Adam Leitman Bailey, P.C. Secures Preliminary Injunction To Protect Workers and the Public From Dangerous Conditions
Adam Leitman Bailey, P.C. represents one of the largest parking facility companies in New York City. Of the many facilities the company operates, one is an open-air parking lot in Upper Manhattan, not far north of the George Washington Bridge. The lot is abutted by two five-story residential buildings owned by the same landlord.
The lot does not have a barrier or other structure shielding it from objects falling from the adjacent building’s roof. In September 2022, our client learned that unknown individuals were throwing objects off the building’s roof into the lot. This was no mere child’s play. Customer vehicles, including luxury vehicles, were being badly damaged, including a Tesla Model 3 whose window was shattered from a hard blunt object thrown from the roof. For several months the attacks ceased, but in June 2023 they aggressively recommenced. The objects were heaved with considerable force from the neighboring property’s roof (at least 5 stories up) and exploded or burst on impact. Our client’s employees and customers were gravely concerned for their safety, with some employees having requested re-assignment. Our client ultimately determined that the objects were “frozen water balloons”. That may sound amusing, but they posed a dire threat; ziplock-type bags were filled with water and then frozen solid, after which they were aimed and hurled at the lot. The safety and well being of our client’s workers, its customers, and the public at large was in danger.
No one likes litigation other than litigators, and our client made repeated good faith efforts to resolve the problem on its own. Local law enforcement was contacted, and they entered the building and examined the roof, but, unsurprisingly, the perpetrators were nowhere to be found. Efforts to communicate with the building’s owner also proved unhelpful. In fact, the managing agent bizarrely claimed it could do nothing to assist and suggested that our client point a camera at the roof and film any attacks.
In a last-ditch effort to resolve the problem before commencing a lawsuit, our client’s executives entered the building in the hopes of speaking with the superintendent or anyone who might put an end to the attacks. No one was to be found and the building had no observable security measures in place. The executives trudged up to the roof to see if the superintendent was there. While no one was on the roof, our clients discovered and photographed the bags that had been used to create the frozen missiles, as well as what appeared to be drug paraphernalia.
With the July 4 holiday approaching and no relief in sight, our client contacted us for help. After an initial call with managing partner Adam Leitman Bailey, litigation partner Joshua Glatter, and associate Michael Nesheiwat, the team snapped into action. In the span of a few hours, Adam Leitman Bailey P.C. assembled an Order to Show Cause, including detailed attorney and client affidavits, photographic evidence, a legal memorandum, and full complaint, and filed it in New York County Supreme Court before the close of business that Thursday. When the weekend ended, the Court had executed the Order to Show Cause, issued a temporary restraining order, and set a hearing on a preliminary injunction in a few weeks.
Fortunately, no attacks occurred after the TRO’s issuance, but there was little assurance, and the TRO would expire once the hearing occurred absent court action. And while Adam Leitman Bailey P.C. expeditiously and appropriately served the papers on the defendant landlord-owners, no one appeared on their behalf, no answering papers were filed, and it remained unclear whether the defendants would comply with the Court’s order.
One might think in this situation the Court would simply convert the TRO into a preliminary injunction, but its not that simple. Courts are reflexively leering of awarding relief on an “ex parte” basis and are even more hesitant to hold parties in default. At the hearing, with Mr. Glatter appearing on behalf of our client, the Court posed challenging questions concerning notice, vicarious liability, and a neighbor’s rights to exercise self-help. At the hearing’s conclusion, the Court requested further briefing. Over the next several days, the Firm put together a highly detailed letter-memorandum that included additional examples of the landlord’s recalcitrance. The Court had clearly seen enough, and, with some modest modifications, entered Adam Leitman Bailey P.C.’s proposed preliminary injunction order, requiring the landlord to, in accordance with fire and building code obligations, ensure that no access to the roof would be granted outside of permitted uses.
In litigation what may first seem to be a simple “slam dunk” case can reveal nuances and unexpected turns, and even when not facing opposing counsel, New York judges are tough and detail oriented. Adam Leitman Bailey P.C. approaches that reality with a simple philosophy. Be prepared. Move fast. The details matter. Never assume an outcome is assured. Expect the unexpected. And do whatever you have to do within the bounds of the law to protect your client, and, in this case, the public as well.
The client was represented by partners Adam Leitman Bailey and Joshua Glatter, and associate Michael Nesheiwat. Mr. Glatter argued on behalf of the client before the Court.