Part Performance at the Preliminary-Injunction Stage: Third Department Affirms Denial of Mandatory Relief Where the Parties’ Conduct Evidences Assent to a Lease Relocation

Introduction

In R. Kelly Freedman Holding Group, LLC v. P & M Brick, LLC, 2025 NY Slip Op 05857 (App Div, 3d Dept Oct. 23, 2025), the Third Department affirmed the denial of a tenant’s request for a mandatory preliminary injunction that would have compelled its restoration to a larger leased site at the Port of Coeymans. The dispute arose after a decade-long commercial relationship evolved into negotiations over a relocation to a smaller site and a new operational model. When the landlord’s affiliate began servicing a competitor and terminated short-term service arrangements, the tenant sued and sought injunctive relief restoring possession of its original premises.

The pivotal legal issue on appeal was procedural but consequential: may a court, at the preliminary-injunction stage, weigh the parties’ conduct as part performance of an alleged agreement—despite unresolved Statute of Frauds and no-oral-modification questions—to conclude that a tenant has not shown a likelihood of success and that mandatory relief is unwarranted? The Third Department’s answer clarifies a practical and important point in New York injunction practice.

Summary of the Opinion

The Appellate Division held that Supreme Court did not abuse its discretion in denying the tenant’s request for a mandatory preliminary injunction. Assuming without deciding that no enforceable written “second lease addendum” existed under the Statute of Frauds (General Obligations Law § 5-703) or the lease’s no-oral-modification clause (GOL § 15-301[1]), the court ruled that Supreme Court properly considered evidence of part performance and the parties’ post-meeting conduct. That conduct—including a countersigned version of the tenant’s counterproposal, coordinated relocation activities, execution of a related services agreement, and uninterrupted operation under the new model—could support a trier of fact’s finding that the relocation was undertaken pursuant to an agreement, not merely as preparatory steps.

Because mandatory injunctions are extraordinary and designed to preserve, not alter, the status quo, the court concluded that requiring restoration to the original premises was not warranted. The tenant had not shown a clear likelihood of success on its claims of wrongful ouster or quiet-enjoyment violations, and it continued operating without interruption at the new site. The order continuing a TRO that prevented interference with the tenant’s possession of its current premises, but denying broader mandatory relief, was affirmed.

Factual and Procedural Background

2010–2011: The tenant (a subsidiary of EMR) leased approximately 6.42 acres at or near the Port of Coeymans from P & M Brick, LLC for a scrap metal operation, with P & M/Carver Companies to provide related services. The lease had a standard integration and no-oral-modification clause; a 2011 addendum adjusted service rates.
2021–2023: The landlord’s affiliate pressed for relocation, eventually proposing a shift to a one-acre site in an industrial park with a revised logistics model. A February 2023 draft addendum was revised in August 2023; the tenant countered in September 2023 with handwritten changes and returned a signed version. Negotiations continued into January 2024.
January–March 2024: The parties met on January 22, 2024. While the tenant claimed no final agreement, the landlord asserted assent to proceed under the September 2023 counterproposal effective March 1, 2024. A “test run” occurred; on February 15, 2024, the landlord emailed a countersigned version of the tenant’s September counterproposal. The parties coordinated relocation by late February, executed a related standalone services agreement, and the tenant fully operated from the new site in early March.
Litigation: On March 15, 2024, the landlord canceled certain short-term service agreements (not the 2010 lease). After learning the landlord would service an EMR competitor, the tenant sued for breach of contract, trespass, conversion, forcible detainer, and tortious interference, alleging an unauthorized February entry, equipment removal, and ouster to a smaller site. It moved for a preliminary injunction restoring its possession of the original premises.
Supreme Court ruling: After an evidentiary hearing, Supreme Court found no clear likelihood of success, especially in light of the parties’ conduct post-January 2024. The court continued a TRO barring interference with the tenant’s possession at the current site but denied mandatory restoration. The tenant appealed, focusing its challenge on the court’s reliance on part performance given alternative explanations for its conduct.

Analysis

1) Precedents and Authorities Cited

The Third Department anchored its analysis in well-settled preliminary-injunction law and New York’s equitable doctrines mitigating the Statute of Frauds:

Purpose and standard for preliminary injunctions: The opinion reiterates that such relief preserves the status quo, not the ultimate rights of the parties (Commissioner of the N.Y. State Dept. of Transp. v Polite, 236 AD3d 82 [2d Dept 2024]; CPLR 6301). The moving party must show likelihood of success, irreparable harm, and balance of equities (Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839 [2005]; Darwish Auto Group, LLC v TD Bank, N.A., 224 AD3d 1115 [3d Dept 2024]).
Mandatory injunctions: Courts rarely grant mandatory preliminary injunctions compelling affirmative acts; such relief is reserved for unusual situations where it is essential to maintain the status quo (Second on Second Café, Inc. v Hing Sing Trading, Inc., 66 AD3d 255 [1st Dept 2009]; Uniformed Firefighters Assn. v City of New York, 79 NY2d 236 [1992]; Shake Shack Fulton St. Brooklyn, LLC v Allied Prop. Group, LLC, 177 AD3d 924 [2d Dept 2019]; One Flint St. LLC v Exxon Mobil Corp., 145 AD3d 1490 [4th Dept 2016]). Appellate review is for abuse of discretion (Waldron v Hoffman, 130 AD3d 1239 [3d Dept 2015]; Petry v Gillon, 199 AD3d 1277 [3d Dept 2021]).
Statute of Frauds and no-oral-modification: GOL § 5-703(2) requires signed writings for certain real property agreements, and GOL § 15-301(1) enforces no-oral-modification clauses. Yet GOL § 5-703(4) preserves equity’s power to compel specific performance upon part performance. The Court of Appeals recognizes the equitable foundation of this doctrine (Eujoy Realty Corp. v Van Wagner Communications, LLC, 22 NY3d 413, 425–26 [2013]).
Part performance doctrine: The doctrine prevents the Statute of Frauds from becoming a “sword rather than a shield” (S & G Golden Estates, LLC v New York Golf Enters., Inc., 216 AD3d 831 [2d Dept 2023]; Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229 [1999]). To prevail on the merits, the proponent ultimately must show acts “unequivocally referable” to the alleged agreement—acts explainable only by reference to that agreement (Anostario v Vicinanzo, 59 NY2d 662, 664 [1983]; see also Rose v Spa Realty Assoc., 42 NY2d 338 [1977]).
Illustrative applications: The court cited cases upholding part performance based on conduct strongly evidencing assent (Rose v Spa Realty; Bowers v Hurley, 134 AD3d 1191 [3d Dept 2015]; Luft v Luft, 52 AD3d 479 [2d Dept 2008]; South Liberty Realty Corp. v Mercury, 292 AD2d 516 [2d Dept 2002]) and contrasted those where acts were merely preparatory or ambiguous (Aldrich v LNG Enters., Inc., 220 AD3d 1178 [4th Dept 2023]; 800 Third Ave. Assoc., LLC v Roadrunner Capital Partners LLC, 214 AD3d 429 [1st Dept 2023]; Wells v Hodgkins, 150 AD3d 1449 [3d Dept 2017]; RTC Props. v Bio Resources, 295 AD2d 285 [1st Dept 2002]).

2) The Court’s Legal Reasoning

The Third Department’s reasoning proceeds in three interlocking steps:

First, frame the relief sought: Because the tenant asked the court to compel restoration to the original premises (a classic mandatory injunction), the bar was high. The appropriate inquiry is not who is right on the merits, but whether maintaining the true status quo requires compelled action—something courts are reluctant to order absent unusual circumstances.
Second, assume arguendo and look to equity: The panel expressly assumed, without deciding, that there was no enforceable writing. Even under that assumption, Supreme Court could evaluate whether equity might ultimately enforce an oral arrangement via part performance. That inquiry is permissible at the provisional stage to assess likelihood of success and the proper status quo, without resolving the final “unequivocally referable” merits question.
Third, scrutinize the parties’ conduct: The record showed a countersigned version of the tenant’s September 2023 counterproposal was delivered on February 15, 2024; the parties jointly coordinated relocation and clearing of materials by late February; they executed a standalone related-services agreement by month’s end; and the tenant then fully operated under the new model in early March. The tenant’s claim that equipment damage forced the move was undermined by its own proof that operations at the original site could have continued, albeit manually. On these facts, the court concluded that a factfinder could ultimately deem the parties’ conduct “explainable only” by reference to an agreement to relocate, rather than seeing the steps as mere preparation.

From these premises, two doctrinal conclusions follow. First, the tenant did not show a clear likelihood of success on its claim that it was wrongfully ousted or denied quiet enjoyment, a prerequisite for mandatory relief restoring possession. Second, the actual status quo at the time of the motion was the tenant’s ongoing operation at the new site, which the court preserved by continuing the TRO that barred interference at that location. Compelling a return to the original premises would have altered, not preserved, that status quo.

3) What This Decision Adds to New York Law

Clarifies the role of part performance at the provisional stage: The decision underscores that, at the preliminary-injunction phase, courts may consider the parties’ conduct suggestive of part performance to assess both likelihood of success and what the status quo really is—even when enforceability under the Statute of Frauds or a no-oral-modification clause remains undecided. The “unequivocally referable” standard governs the ultimate merits; it need not be conclusively resolved to deny mandatory interim relief.
Defines status quo pragmatically: Where the parties have jointly undertaken and implemented a new operational arrangement, that new arrangement can be the status quo the court preserves. A plaintiff who has already moved and is operating under a new model faces a steeper climb to compel restoration to an earlier arrangement.
Reaffirms the exceptional nature of mandatory injunctions: Even in landlord–tenant or possession disputes, mandatory relief will be withheld where the moving party continues to operate without interruption and the evidence suggests consensual change pending final adjudication.

4) Likely Impact on Future Cases and Commercial Practice

Injunction practice: Parties seeking to “undo” business relocations or operational shifts will need to present compelling proof of ouster or unilateral interference and to negate consensual conduct. Mere assertions of “no choice” will be tested against contemporaneous communications and operational feasibility at the prior site.
Contracting strategy: The case is a cautionary tale for tenants and landlords alike. “Trial runs,” coordinated relocations, and related-services agreements can be construed as assent to modified lease terms. Parties who wish to experiment without binding effect should employ explicit, written “without prejudice/without reliance” pilots, standstill agreements, and no-modification carve-outs that are themselves signed.
Statute of Frauds litigation: While the merits standard for part performance remains unchanged, this decision will likely be cited to resist mandatory preliminary relief in Statute of Frauds disputes whenever the moving party’s conduct looks like implementation rather than mere preparation.
Industries with integrated services: In ports, logistics, and heavy industry—where land use and services are intertwined—coordinated operational changes can quickly re-define the status quo. Counsel should anticipate how interim relief requests will be framed and marshal evidence accordingly.

Complex Concepts Simplified

Preliminary injunction: A court order entered early in a case to maintain the situation as it currently exists until the case is decided. The moving party must show likely success, irreparable harm, and that the equities favor relief.
Mandatory vs. prohibitory injunction: A mandatory injunction compels action (e.g., “restore possession”). A prohibitory injunction restrains action (e.g., “do not interfere”). Mandatory relief is harder to get because it changes the status quo.
Status quo: The actual, operative state of affairs when the court is asked to act. Here, the status quo was the tenant’s ongoing operation at the new site, not the pre-relocation arrangement.
Statute of Frauds (GOL § 5-703): Requires certain real estate agreements, including long-term leases or modifications affecting real property interests, to be in a signed writing.
No-oral-modification clauses (GOL § 15-301[1]): Contract terms that bar oral amendments. New York generally enforces them, but equitable doctrines can overcome them in specific circumstances.
Part performance: An equitable doctrine allowing enforcement of an unwritten agreement when one party has taken substantial actions that only make sense if the agreement exists, to prevent the Statute of Frauds from being used as a tool of fraud.
“Unequivocally referable” acts: Conduct that is unintelligible or extraordinary unless an agreement exists. This is the stringent merits test for part performance, typically decided after full fact-finding.
Quiet enjoyment and ouster: The tenant’s right to possess and use the premises without substantial landlord interference. “Ouster” suggests wrongful dispossession. Evidence that the tenant could have continued operating (even if less conveniently) weakens ouster claims at the provisional stage.
Abuse of discretion: The deferential standard an appellate court uses when reviewing preliminary-injunction rulings. The question is not whether the appellate court would have ruled differently, but whether the trial court acted outside the bounds of reasonable discretion.

Key Takeaways for Litigants and Counsel

Expect courts to weigh your conduct: If you coordinate a relocation, sign related service agreements, and operate under the new model, those facts will be used to assess whether mandatory restoration is truly necessary to preserve the status quo.
Do not rely on the Statute of Frauds at the provisional stage: Even if you believe there is no enforceable writing, courts can still consider part performance in deciding whether to grant interim relief.
Mandatory relief is exceptional: To compel restoration to prior premises, be prepared to demonstrate clear ouster, irreparable harm, and a strong likelihood of success—despite evidence suggesting assent.
Use written guardrails for pilots: If you test new arrangements, paper them with signed terms stating the pilot does not modify the lease, is non-binding, and creates no reliance—reserving all rights.
Define the status quo in your motion papers: Show why the “last peaceful, uncontested” state preceded the challenged acts and why restoring it is necessary to prevent irreparable harm.

Conclusion

R. Kelly Freedman Holding Group, LLC v. P & M Brick, LLC reinforces two pillars of New York injunction law: mandatory preliminary injunctions remain extraordinary, and courts may look to equitable doctrines like part performance—without definitively resolving Statute of Frauds or no-oral-modification issues—to determine whether such relief is warranted. By focusing on the parties’ coordinated relocation and uninterrupted operations at the new site, the Third Department affirmed a pragmatic conception of the status quo and declined to compel restoration to the original premises.

For future litigants, the opinion is both a warning and a roadmap. Actions that implement a negotiated change, even amid disputed paperwork, can undermine requests to “undo” that change pendente lite. Counsel should carefully structure interim business changes, preserve written reservations, and anticipate that courts will weigh conduct heavily when deciding whether to grant mandatory injunctive relief.