Serge Somrov purchased apartment 7A at the Bay Parkway Terrace  Condominium. After moving in Somrov replaced the floor of the terrace with Board approval.

Ten years later, Somrov was told that a leak on his terrace was causing water damage to the apartment below. Pursuant to the By-Laws Somrov was required to remove the tiles he installed as well as the cement underneath. And Bay Parkway was obligated to install waterproofing  after which Somrov could re-install the tiles. Somrov  removed the tiles but did not remove the cement. Bay Parkway refused to install the waterproofing until the cement was removed.

Somrov sought a preliminary injunction that required Bay Parkway to remove the cement and install the waterproofing.

To obtain a preliminary injunction, Somrov was required to demonstrate: a likelihood of success on the merits; an irreparable injury absent the injunction; and a balancing of the equities in his favor. The for the injunction was the allegations that Bay Parkway refused to install the waterproofing without a valid justification. Thus, Somrov argued that Bay Parkway Terrace was insisting that he “remove not only my tiles and adhesive, but the original concrete floor down to the existing layer of waterproofing material. The original concrete and the existing layer of waterproofing was not affected by either the installation of my original tiles, nor their removal.”

Bay Parkway’s By-Laws stated, concerning the terrace, that the owner of the unit must install “protective decking” and was responsible for the maintenance of any decking installed as well as the “repair or replacement of surface material where damaged”. The  By-Laws  also stated that Bay Parkway was responsible for “structural elements, such as rafters, bulkheads, etc.”

Somrov was clearly required  to remove the tiles and the surface material of the terrace. Bay Parkway argued that  the concrete was a  surface material which was the responsibility of Somrov.

The Court found that was a question of whether or not the concrete should be considered sub-surface material, a distinct category. There were further questions whether Somrov removed all the tiles and glue which he was obligated to do. Thus, while it was true that a preliminary injunction could be granted where some facts are in disputes, some evidence of likelihood of success must be presented. Therefore, when “key facts” are in dispute and the basis for the injunction rests upon “speculation and conjecture” the injunction must be denied.

In this case the entire basis for Somrov’s request was subject to factual and legal questions, namely which party was responsible to remove the sub-surface concrete. While Somrov insisted it was the responsibility of Bay Parkway  considering the nature of the material, there remained questions whether the responsibility rested with Bay Parkway  Since Somrov did not demonstrate a likelihood of success on the merits, the motion seeking a preliminary injunction was denied.