Opinion
9553N Index 25834/17E
06-06-2019
CIMINELLO PROPERTY ASSOCIATES, Plaintiff–Appellant, v. NEW 970 COLGATE AVENUE CORP., et al., Defendants–Respondents.
Robinson Brog Leinwand Greene Genovese & Gluck, P.C., New York (David Abramovitz of counsel), for appellant. Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for respondents.
Robinson Brog Leinwand Greene Genovese & Gluck, P.C., New York (David Abramovitz of counsel), for appellant.
Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for respondents.
Sweeny, J.P., Gische, Webber, Oing, Moulton, JJ.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered March 1, 2019, which, to the extent appealed from, denied plaintiff's motion for a preliminary injunction to enjoin and restrain defendants from installing or maintaining any physical obstruction preventing plaintiff and its tenants' access to certain portions of Close Avenue, unanimously affirmed, with costs.
Plaintiff failed to demonstrate that the motion court abused its discretion by declining to grant a preliminary injunction in this case (see generally After Six v. 201 E. 66th St. Assoc., 87 A.D.2d 153, 155, 450 N.Y.S.2d 793 [1st Dept. 1982] ; Borenstein v. Rochel Props., 176 A.D.2d 171, 172, 574 N.Y.S.2d 192 [1st Dept. 1991] ; Porcari v. Griffith, 169 A.D.3d 729, 730–731, 91 N.Y.S.3d 705 [2d Dept. 2019] ). Although the record before the motion court contained some evidence of plaintiff's control of the disputed sections of Close Avenue, it also included affidavits indicating that defendants, rather than plaintiff, had maintained the portions of Close Avenue in dispute, that since at least 1999 defendants had controlled access and plaintiff and its tenants' use had been permissive, and that plaintiff and its tenants did not complain about defendants changing the gate locks. Plaintiff also conceded that the facts necessary to establish its right to an easement will likely require discovery concerning activities from decades ago, possibly from the 1970s. Under these circumstances, the motion court providently exercised its discretion in declining a preliminary injunction on the basis that plaintiff failed to demonstrate a likelihood of success on the merits because it did not establish a prescriptive easement by clear and convincing evidence (see Amalgamated Dwellings, Inc. v. Hillman Hous. Corp., 33 A.D.3d 364, 364–365, 822 N.Y.S.2d 499 [1st Dept. 2006] ).
In any event, plaintiff also failed to establish that it would suffer irreparable harm in the absence of a preliminary injunction, or that a balance of the equities was in its favor(see generally GFI Sec., LLC v. Tradition Asiel Sec., Inc., 61 A.D.3d 586, 586, 878 N.Y.S.2d 689 [1st Dept. 2009] ; cf. Grand Manor Health Related Facility, Inc. v. Hamilton Equities, Inc., 85 A.D.3d 695, 695, 926 N.Y.S.2d 100 [1st Dept. 2011] ).