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At a Motion Term of the Supreme Court. of
`the State of New York. held in and for New
`
`York County. at [AS Part _ thereof. held at
`the Courthouse located at 60 Centre Street,
`New York. New York. on the 2;” day of
`January. 2010.
`
`PRESENT:
`
`HON.
`
`,
`
`J.S.C.
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF NEW YORK
`—————————————————————————————————————————————————————————————x
`ANTHONY E. RUSSO.
`
`_
`Index No.: 14600 b 3 {2010
`
`Plaintiffls),
`
`-agaiust—
`
`ORDER TO SHOW CAUSE
`
`210 RIVERSIDE TENANTS, INC.. HALSTEAD
`MANAGEMENT COMPANY. L.L.C.. MICHAEL
`
`TAMBASCO. ELJIO BERISHA and LOCAL 328J
`
`SERVICE EMPLOYEES INTERNATIONAL
`LABOR UNION
`
`(Request for Preliminary Injunction
`& Temporary Restraining Order)
`
`_________________________________________________________________ x
`
`Defendant(s).
`
`UPON reading and filing the AFFIDAVIT OF EMERGENCY by ANTHONY F...
`
`RUSSO. the plaintiff in the above-captioned action, sworn to on the _ day of January, 2010. upon
`
`the VERIFIED COMPLAINT and all other pleadings in this action.
`
`LET the defendants show cause. at a hearing before this court. to be held in and for the
`
`County of New York. on the
`
`day of February. 2010. at 9:30 am. in the forenoon hours of said
`
`day. at the CourthouSe located at 60 Centre Street, New York. New York, [AS Part
`
`thereof.
`
`
`
`

`

`before the Hon.
`
`may be heard.
`
`. Assigned Justice. or as soon thereafter as counsel
`
`WHY an order should not be entered enjoining the defendants 210 RIVERSIDE TENANTS
`
`INC. HALSTEAD MANAGEMENT COMPAN Y. L.L.C.. LOCAL 32BJ SERVICE EMPLOYEES
`
`INTERNATIONAL LABOR UNION and MICHAEL TAMBASCO. to:
`
`a.
`
`b.
`
`Return plaintiffto his assigned position at the 210 RIVERSIDE BUILDING;
`
`Secure a positiou for plaintiff in another building at a pay rate either equal
`
`to or greater than his current pay rate: or
`
`0.
`
`Continue plaintiff" 3 regular salary during the suspension period andfor post
`
`termination administrative remedy and/or court proceedings,
`
`pending a hearing, and WHY the plaintiff should not have such other and further relief as to this
`
`court may deem to bejust. proper and equitable.
`
`NOW, upon all of the pleadings and proceedings heretofore had, herein. and upon all the
`
`papers filed in this action. due deliberation having been had. and sufficient cause appearing therefor.
`
`it is hereby
`
`ORDERED,
`
`that
`
`the defendants 210 RIVERSIDE TENANTS INC. HALSTEAD
`
`MANAGEMENT COMPANY. L.L.C.. LOCAL 32BI SERVICE EMPLOYEES INTERNATIONAL
`
`LABOR UNION and MICHAEL TAMBASCO are hereby enjoined to either:
`
`a.
`
`b.
`
`Return plaintif‘t‘to his assigned position at the 210 RIVERSIDE BUILDING;
`
`Secure a pesition for plaintiff in another building at a pay rate either equal
`
`to or greater than his current pay rate: or
`
`

`

`c.
`
`Continue plaintiff‘s regular salary during the suspension period andfor post
`
`termination administrative remedy andlor court proceedings.
`
`pending a hearing. and it is further
`
`ORDERED, that an expedited hearing will be held on the __ day of February. 2010. at 9:30
`
`am. in the forenoon hours of said day. at the courthouse located at 60 Centre Street. New York. New
`
`York. [AS Part _ located in Room
`
`, and it is further
`
`ORDERED, that personal service. pursuant to C.P.L.R. Section 2103(b)(1 ) or (3), ofa copy
`
`of this order and the papers upon which it is based. along with a copy of the SUMMONS and
`
`COMPLAINT will be completed on or before the __ day of January. 2010. by the close of
`
`business. and it is further
`
`ORDERED. that proof of service pursuant to this court‘s order be filed with the clerk ofthis
`
`court no later than the day of the hearing on this issue.
`
`LET service pursuant to this court’s order. together with proot‘of service thereof being duly
`
`filed with the clerk of this court be deemed good and sufficient service.
`
`SO ORDERED.
`
`Dated:
`
`New York. New York
`
`E N T E R,
`
`January '25. 2010
`
`
`
`Supreme Court Justice
`
`

`

`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF NEW YORK
`------------------------------------------------------------------X
`ANTHONY E. RUSSO.
`
`IndexNogbglUOt‘giQ’Q‘O
`
`Plaintiffis).
`
`-against-
`
`EMERGENCY AFFIDAVIT
`
`210 RIVERSIDE TENANTS. iNC.. HALSTEAD
`
`MANAGEMENT COMPANY. L.L.C.. MICHAEL
`
`TAMBASCO. ELJIO BERJSHA and LOCAL 323.1
`
`SERVICE EMPLOYEES INTERNATIONAL LABOR
`
`UNION
`
`__________________________________________________________________x
`
`Defendant(s).
`
`ss.:
`
`):
`
`STATE OF NEW YORK
`
`COUNTY OF NEW YORK )
`
`ANTHONY E. RUSSO. being duly sworn. deposes and says:
`
`1.
`
`I am the piaintiffin this action. and as such I am fully familiar with the circumstances
`
`of this case. and all of the pleadings and proceedings heretofore had. herein.
`
`2.
`
`I submit this affidavit in support of my application for the issuance of an ORDER
`
`TO SHOW CAUSE, upon information and belief.
`
`3.
`
`The source of my information and ground for my belief is personal knowledge. To
`
`the extent that matters herein stated are alleged upon information and belief which cannot be verified
`
`through independent sources. I believe them to be true.
`
`

`

`EMERGENCY SITUATION EXISTS WHICH PREVENTS ME
`
`FROM SCHEDULING THIS MOTION UPON NOTICE
`
`TO THE ADVERSE PARTIES IN THE ABOVE-CAPTIONEDLCTION
`
`4.
`
`I am suffering from Medical Conditions which require me to take life-sustaining
`
`medications.
`
`5.
`
`The costs of my medications are so high. that even considering my health insurance
`
`coverage. I have err-payments which run into quite a lot of money every month.
`
`6.
`
`In addition. I am the sole source of support for my household and pay $1,450.00 per
`
`month in rent. along with the other approximate $500.00 per month in living expenses.
`
`7.
`
`Even with my regular weekly salary. I have trouble making it on a month-to-month
`
`basis.
`
`8.
`
`Without my salary. I will be in danger of losing my apartment. and losing my health
`
`insurance coverage.
`
`9.
`
`I am not able to make COBRA payments to keep my health insurance coverage. lam
`
`not able to afford my co-paymcnls on my medication.
`
`10.
`
`Even assuming. arguendo. Medicaid is available. Generally. when applying,
`
`there
`
`is a 45 day statutory waiting period with which a person is usually without medication.
`
`they are eligible for unemployment.
`
`12.
`
`I applied for Unemployment insurance and received a determination letter stating that
`
`lam eligible but due to my last 2 quarters I am only eligible to earn approximately $222.00 per week.
`
`l\)
`
`1 1.
`
`People are generally not eligible for the State Welfare and Medicaid System. when l
`
`.
`
`
`
`

`

`13.
`
`That amount will not pay my living expenses. and I can not get any supplements from
`
`the State Welfare or any other system.
`
`14.
`
`Without the immediate form of relief sought by this application, I will be subjected
`
`to immediate and irreparable harm. in the form ot'homelessness. no health insurance coverage. and
`
`to be without my life-sustaining medication.
`
`I HAVE MADE EVERY REASONABLE EFFORT
`
`TO ATTEMPT TO RESOLVE THIS BY SPEAKING
`
`WITH THE DEFENDANT UNION WHO REFUSES
`
`TO RETURN MY TELEPHONE CALLS HOWEVER
`
`I WAS ABLE TO ASCERTAIN THAT I COULD NOT
`
`PROVIDE ANY ADVANCE NOTICE OF THIS APPLICATION
`
`15.
`
`1 cannot obtain any assistance from my Union.
`
`I have tried to call them time and time
`
`again. to no avail.
`
`I have made every reasonable effort to explain my situation and 1 cannot get
`
`anyone to listen to me.
`
`16.
`
`1 was told by the Union Representatives that 1 cannot contact the Building Manager
`
`or HALSTEAD or the Superintendent while the complaint was pending.
`
`17.
`
`I called the complaint department 01‘ the Union and asked to speak to the
`
`representative, who was. of course. unavailable. However. 1 spoke to one of the clerk's in the union
`
`office and asked if I was able to serve the property management firm with Court papers. The clerk
`
`advised me that l was not allowed to forward any correspondence whatsoever unless it was a court
`
`order or subpoena.
`
`18.
`
`So. according to the terms of my agreement with the Union. unless and until 1 have
`
`an official court document. providing the defendants with any notices ofapplications which have not
`
`

`

`been officiated by the clerk of the court would be in violation of the terms of my union
`
`representation.
`
`I HAVE A SUBSTANTIAL LIKELIHOOD OF SUCCESS
`
`ON THE MERJTS OF THIS CASE WHICH
`
`ARE AT LEAST FAIR GROUND FOR LITIGATION
`
`I9.
`
`I have been indefinitely suspended. based on lies and based on mis-eharacterizations.
`
`and due to the fact that my immediate supervisor failed or refused to remedy an ongoing problem.
`
`and the end result was to take matters into my own hands, and wony about my health.
`
`20.
`
`In sum. had it not been for the fact that I have daily medications to take. some of
`
`which require refrigeration. and it is not feasible to carry them around with me. I would not have left
`
`my post.
`
`21.
`
`I left my post believing that my relief was only a short walk of a few yards away. and
`
`was on his way into the building.
`
`22.
`
`Due to the slanderous lies ofthe defendant Superintendent, I could not even present
`
`my defenses to the Property Manager.
`
`23.
`
`Due to the denial of the Property Manager to permit me to wait for my Union
`
`Representative 1 could not even have him present my defense.
`
`24.
`
`Due to the failure of the Union Representative to appear in a timely manner, and to
`
`register meritorious grievances. I have been the victim ofa breach ofcontract, and the breach of the
`
`duty of fair representation.
`
`
`
`

`

`25.
`
`I can present certain witnesses to substantiate some of my claims and during the
`
`pretrial proceedings and during the trial 1 have Subpoena Power where I can procure and produce
`
`documents to substantiate other claims made in the Verified Complaint.
`
`BALANCE OF HARDSHIPS Wfififl IN PLAINTIFF’S FAVOR
`
`26.
`
`i am facing homelessness.
`
`lack of health insurance, and lack of life-sustaining
`
`medication in the absence ofrelief fi-om this honorable court.
`
`27.
`
`The defendant's face no hardship in either permitting me to return to work. or. in the
`
`alternative. placing me in another building pending a hearing on this motion.
`
`28.
`
`The only hardship the defendants would face is if they were forced to pay me during
`
`a protracted period of time. for which I was not working. however. that is not my goal. My goal is
`
`to return to work either in my place of employment. or. preferably, to be relocated to another
`
`building.
`
`Legal Standard:
`
`MM
`
`29.
`
`The authority to issue a Temporary Restraining Order is grounded in C PLR § 6313
`
`as follows:
`
`CPLR §6313. Temporary Restraining Order.
`
`(:1) Generally. If. on a motion for preliminary injunction.
`
`the plaintiff shall show that immediate and irreparable
`
`injury. loss or damages will result unless the defendant is
`
`restrained before a hearing can be had. a temporary
`
`restraining order may be granted without notice.
`
`

`

`30.
`
`It is well settled that the granting ot‘preliminary injunctive relief lies within the sound
`
`discretion of the court (see. (larger v. Koch. 62 NY2d 84) and is predicated upon movant
`
`demonstrating: irreparable injury absent granting of the preliminary injunction; a likelihood of
`
`ultimate success on the merits: and. a balancing ol‘the equities in favor ofthe movant‘s position (see,
`
`Combat“ Enterprises. Inc. 1!. Kelly Services. Inca. 69 AD2d 297. 306; Albini v. Solar-tr Associates. 37'
`
`AD2d 835). it is a drastic remedy which will not be granted unless a clear right thereto is established
`
`under the law and the undisputed facts upon the moving papers, and the burden of showing such an
`
`undisputed right rests upon the movant {First National Bank of Downsville v. Highland 5
`
`Hardworids, inc. . 98 AD2d 924. 926: see also. Famib-Aflitirs Hair-cutters, Inc. v. Detling. 1 10 AD2d
`
`745).
`
`31.
`
`"A preliminary injunction may be granted under CPLR Article 63 when the party
`
`seeking such relief demonstrates: (1) a likelihood of ultimate success on the merits: (2) the prospect
`
`ofirreparable injury il’the provisional relief is withheld; and (3) a balance of equities tipping in the
`
`moving party’s favor." Doe v. Axelmd. 73 NY. 2d 748, 750 ( 1 988) (citation omitted); see also/lama
`
`laser. (‘0. v. (211mm), 75 N.Y.2d 860. 862 (1990) (citation omitted).
`
`lrreparable lniug:
`
`32.
`
`Unless the plaintiffclearly demonstrates a necessity and urgency for relief in advance
`
`of a trial including the sustaining in the meantime of irreparable injury. the injunctive remedy will
`
`be withheld pending the trial (citations omitted)? Merola v. Talents, 127 A.D.2d 1007 (4th Dept.
`
`1987). Plaintiff is not entltled to a preliminary injunction where irreparable harm is not sufficiently
`
`shown. See rd. at 1007; Gt'ogrm r. Saint Bonaventure University, 91 A.D.2d 855 (4th Dept. 1982);
`
`Baron v. Otterbetn. 84 A.D.2d 928 (4th dept. 1981). Here. Plaintiffs complaint seeks monetary
`
`

`

`damages. however. plaintiffalso shows that there is an urgency with respect to homelessness, and
`
`medical treatment, and life-sustaining medication. Plaintiff can simply not be made whole by an
`
`award of money damages. whenever a trial happens which could be years from now. See Ashe}: v.
`
`Ban-a. 170 A.D.2d 436 (2nd Dep't [901).
`
`33.
`
`Plaintiff has indeed shown that it can establish irreparable injury if an injunction is.
`
`not issued.
`
`Balancing of Equities:
`
`34.
`
`"[Tjhe 'balancing of the equities‘ usually simply requires the court to look to the
`
`relative prejudice to each party accrulng from a grant or a denial ofthe requested relief." Ma v. Lien.
`
`198 A.D.2d 186.186-87 (lst Dept. 1993). iv to app dismissed 83 N.Y.2d 847 (1994). Here. as
`
`monetary damages will make not Plaintiff whole in the event it is ultimately successful. will be
`
`facing sickness. homelessness. and a lack of life-sustaining medication, he will be prejudiced by
`
`denying the request for a preliminaiy injunction.
`
`Likelihood of Success on the Merits:
`
`35.
`
`In determining whether there is a likelihood of success on these causes of action. the
`
`I
`
`
`
`Court need not finally determine the merits of the action and should focus on the likelihood of 1
`
`success rather than a showing based on the certainty of success (see Tucker 1; Tara. 54 AD2d 322.
`
`325-326 [4th Dept 1976]: Simon. DeLeetrw. C't’ark & Darcy 1! Beck. l55 AD2Cl 962. 963 [4th Dept
`
`1989]).
`
`36.
`
`"[A] Likelihood of ultimate success must not be equated with a final determination
`
`on the merits." Times Square Books. Inc. v. CityqfRochester. 223 A.D.2d 270. 278 (4th Dept. 1996).
`
`See also. Bingham v. Struve. 184 A.D.2d 35 (131 Dept. 1992).
`
`I
`
`

`

`37.
`
`On a motion for a temporary restraining order. a court is only required to review the
`
`case and determine whether or not there is a likelihood of success, it will ordinarily be enough that
`
`the plaintiff has raised questions going to the merits so serious. substantial. difficult and doubtfill.
`
`as to make them a fair ground for litigation and thus for more deliberative investigation.
`
`(If
`
`Hamilton Watch Co. v. Bem'tts Watch ('70., 206 F .2d 738. 740 {2d Cir. 1953).
`
`38.
`
`Here. plaintiff raises Eight Causes of Action.
`
`Primarily. Slander. Wrongful
`
`Suspension andtor Termination, Breach of Contract. Breach of Duty of Fair Representation, and a
`
`Tortious Interference with Fair Representation.
`
`39.
`
`Plaintiff presents details and allegations sufficient to survive the preliminary stages.
`
`which will be supplemented in the discovery stages of this case.
`
`40.
`
`For example.
`
`the plaintiff needs to substantiate his claims with phone and
`
`employment records. and other documents that cannot be produced overnight. but that will provide
`
`substantial proof for his claims.
`
`41.
`
`At this stage. tfll that is required is for the Court to make a cursory review of the
`
`claims and determine whether or not the claims are sufficiently made and framed to survive to the
`
`trial stages.
`
`42.
`
`The court must also be mindful of the fact that this is a pro se pleading. which.
`
`although. must meet the general requirements of the CPLR. must be read more broadly and liberally
`
`than pleadings drafted by attorneys.
`
`43.
`
`Plaintiff is proceeding pro se, and cannot. at least at this stage. find an attorney to
`
`represent him. He was forced to proceed on his own. with whatever help he could draw from friends
`
`working as paralegals and internet resources.
`
`
`
`

`

`44.
`
`In detemtining a motion for a temporary restraining order as to the likelihood of
`
`success. the same legal standard is used as in cases to dismiss for failure to state cause of action.
`
`where the reviewing court will liberally construe the complaint. CPLR § 3026; Doria 1;. Masaicci.
`
`230 A.D.'2d 764. 765 (2d Dept. 1996). and will give the plaintiff "the benefit of every possible
`
`favorable inference." Shaniey v. Welrh. 6 A.D.3d 1065 (4th Dept. 2005). See 51 1 West 232m!
`
`Ola-triers Corp. v. Jennifer Realty Co. 1098 N.Y.2d 144. 152 (2002).
`
`In addition. the court will
`
`accept as true all facts that are alleged in the complaint and in any submissions in opposition. 5i 1
`
`West 232ml Owners Corp. 98 N.Y.2d at 152: Gibraltar Steel (L'orporarion v. Gibraltar Metal
`
`Processing, 19 A.D.3d l 141.
`
`I 142 (4th Dept. 2005). Motions for preliminary injunctions. like a
`
`motion to dismiss for failure to state a cause of action “must be denied if from the pleadings’ four
`
`corners “factual allegations are discerned which taken together manifest any cause of action
`
`cognizable at law.“ " 5 I 1 West 232ml (Miter-s Corp. 98 N.Y.2d at 152 (qitoringPoionersky 1!. Better
`
`Homes Depot. 97 N. Y.2d 46. 54 (2001 D; Sham’eyv. Weich. 6 A.D.3d at 1065. l f the court determines
`
`“that Plaintiffs are entitled to relief on any reasonable view of the facts stated." the court‘s inquiry
`
`is complete. and the complaint is deemed legally sufficient. (”campaign/bi- Fiscai Equity, inc. v. State
`
`chew York. 86 N.Y.2d 307. 318 [1995).
`
`Conclusion:
`
`45.
`
`Thus. plaintiff respectfully submits that he has met his burden. and is entitled to
`
`the relief requested by this application.
`
`46.
`
`No prior application has been made to this court. or to any other court of competent
`
`jurisdiction for the relief requested herein.
`
`
`
`

`

`WHEREFORE,
`
`I
`
`respectfully request
`
`that my motion for a PRELIMINARY
`
`{NJUNCTION during the pendency of this case along with a TEMPORARY RESTRAINING
`
`ORDER be, in all respects, GRANTED.
`
`Respectfully submitted,
`
`Walk/fl)
`
`ANTHONY E. RUSSO
`
`Plaintiff, pro se
`
`Sworn to before me on this
`
`lq day ofJanuary. 2010.
`
`
`
`
`
`
`10
`
`

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