OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be modified, without costs, by remitting to the Appellate Division for further proceedings in accordance with this memorandum and, as so modified, affirmed. The certified question should be answered in the negative.
The failure of authorities to issue a violation of the New York City Noise Control Code ( see Administrative Code of City of NY § 24-201 et seq.), by itself, does not preclude plaintiff from establishing that it is likely to succeed on the merits. However, it cannot be said on this record that the imposition of a provisional remedy is required as a matter of law. Therefore, the case should be remitted to the Appellate Division for the exercise of its discretion.
We have considered appellants' other contention, and determine that it lacks merit. On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order modified, etc.
Respondent West 63 Empire Associates LLC is not eligible for affirmative relief in this appeal and we express no view on the arguments it has made in that regard ( see Matter of Visiting Nurse Serv. of NY. Home Care v New York State Dept. of Health, 5 NY3d 499, 507).