I agree that plaintiff established its *626entitlement to a preliminary injunction but believe that, in light of this undeveloped record, the majority’s conclusive determination regarding the merits of the claim is premature.
Presented only with the issue of whether plaintiff established a likelihood of success on the merits, I cannot agree that there “can be no doubt” that defendants’ First Amendment rights have not been infringed or that there “is absolutely no evidence” that the government was sufficiently involved with or participated in the regulation of the subject conduct. Unlike the factual circumstances presented in SHAD Alliance v Smith Haven Mall (66 NY2d 496 [1985]), plaintiff leases one of its 32 spaces to a United States government military recruitment center—the only one located within Ulster County. Critical facts necessary for the majority’s unequivocal determination, such as whether plaintiff’s policy against protesting preceded or followed its lease to the military recruitment center and whether such recruitment center pays rent at fair market value, are wholly absent from the record. Thus, while I agree that plaintiff has established a likelihood of success on the merits, the presence of a government tenant, in an otherwise privately owned mall, may alter its status to that characterized by Supreme Court, to wit: “something less or different than purely ‘private’ property, and certainly something which is more akin to a ‘public forum.’ ”
Ordered that the order is affirmed, without costs.