Opinion
11/2320.
Decided October 3, 2011.
John G. Callahan, Esq., Corporation Counsel, By: Elizabeth Mirisola, Esq., Senior Assistant Corporation Counsel, White Plains, New York.
Oxman Tulis Kirkpatrick Whyatt Geiger LLP, Attorneys for Defendant, By: Marc S. Oxman, Esq., White Plains, New York.
The following papers numbered 1 to 7 read on this motion by The People of the State of New York.
Order to Show Cause 1 Affirmation of Elizabeth Mirisola 2 Exhibits A — C 3 Affirmation of Marc S. Oxman 4 Affidavit of John M. Silvanie 5 Memorandum of Law 6 Reply Affirmation of Elizabeth Mirisola 7Upon the foregoing papers, the Court finds and decides as follows:
Defendant White Plains Bus Company is a business engaged in student transportation for various school districts, including the White Plains School District. Defendant Croters Properties, LLC is the owner of the subject property. On August 9, 2011, Corporation Counsel, as the prosecuting attorney, commenced the underlying action by the filing of an Information charging defendants with violating § 7.1 and § 7.1.3 of the Zoning Ordinance of the City of White Plains. The Information alleges that defendants committed the above violation by parking commercial buses at a lot on 139 Westmorland Avenue, a property in the City of White Plains, without an approved site plan. A plea of not guilty was entered on August 10, 2011. By Order to Show Cause, the City now moves for a preliminary injunction mandating that the defendants remove all buses from the lot on 139 Westmorland Avenue and that defendants be enjoined from parking buses at this location until the underlying criminal action has been resolved.
The term prosecutor is defined as a district attorney or any other public servant who represents the people in a criminal action(CPL § 1.20 [31]).
Prior to defendants occupation of 139 Westmorland Avenue, the location was used as a lumber yard.
Subject Matter Jurisdiction
A preliminary injunction is equitable in nature ( Conlon v. Concord Pools, 170 AD2d 754 [3d Dept. 1991]). It is well-settled that the City Court is a court of limited equitable jurisdiction having only those powers granted to it by the New York State Constitution and legislative enactment ( see Bury v. CIGNA Healthcare of New York, 254 AD2d 229 [1st Dept. 1998]; Briscoe v. White , 8 Misc 3d 1 , 2 [App. Term 2d Dept. 2004]). Relying upon the foregoing, defendants argue that the City Court has neither Constitutional nor statutory authority to entertain this application. Countering this argument, Corporation Counsel cites Uniform City Court Act § 203 (a)(6) and posits that this provision empowers the Court to grant injunctive relief on the facts of this case.
Uniform City Court Act § 203 (a)(6) provides as follows: "The court shall have jurisdiction of the following actions provided that the real property involved is located in whole or in part within the city: (6) an action or proceeding for the issuance of an injunction, restraining orders or other orders for the enforcement of housing standards. . . ." It is clear from both the plain meaning of this law and a review of the legislative bill jacket that Uniform City Court Act § 203 (a)(6) was enacted to provide city courts with expanded equitable jurisdiction in the area of landlord-tenant disputes and to allow for a cost efficient means of enforcing compliance with community housing codes (Bill Jacket, L.2005, Ch. 337). Simply stated, this matter does not involve a landlord-tenant dispute and does not implicate any housing code. As such, reliance upon this section of law in the context of the action is misplaced ( see Green v. Lakeside Manor Home for Adults, Inc., 30 Misc 3d 16 [App. Term 2d Dept. 2010]).
Noticeably absent from the arguments presented by counsel is any reference to Uniform City Court Act § 209 (b) (2-a) which provides that "[n]o injunction or restraining order or notice shall issue out of [a city court] unless: the activity complained of has as its basis a violation of law or ordinance relating to land use, building regulation or fire prevention in which case, upon the motion of the prosecuting attorney in accordance with CPLR article 63, the court may issue a preliminary injunction or a temporary restraining order restraining such activity." A review of the bill jacket reveals that Uniform City Court Act § 209 (b)(2-a) was enacted to provide local governments with an effective procedure to enforce compliance with the provisions of their local land use, building and fire prevention laws, particularly when the violation of the local law is the type that endangers the welfare of the public or adversely impacts the living conditions in a neighborhood (Bill Jacket, L.1995, Ch. 514). It is under Uniform City Court Act § 209 (b)(2-a) that this Court has statutory authority to entertain the application for a preliminary injunction ( see People v. 490 West Jericho Realty Corp., 21 Misc 3d 1125[A][Dist. Ct. Suffolk Co. 2008]).
The City's Burden
The decision to grant or deny a preliminary injunction is a matter committed to the sound discretion of the trial court ( Nobu Next Door, LLC v. Fine Arts Housing, Inc. , 4 NY3d 839 ). It has been stated that "[a] preliminary injunction is a drastic remedy and should be granted with caution, and only when required by urgent situations or grave necessity, and then upon the clearest evidence ( Wm. Rosen Monuments v. Madonick Monuments, 62 AD2d 1053 [2d Dept. 1978]). As a general rule, in order to be granted a preliminary injunction the movant must satisfy a tripartite test. The movant must demonstrate (1) a likelihood of ultimate success on the merits; (2) irreparable harm absent the granting of the preliminary injunction; and (3) that a balancing of the equities favors the movant's position ( Doe v. Axelrod, 73 NY2d 748). The movant has the burden of showing a "clear" and "undisputed" right to the preliminary relief ( Ishaq v. Batra, 170 AD2d 436 [2d Dept. 1991]). Moving papers must be supported by competent proof and evidentiary detail ( Scotto v. Mei, 219 AD2d 181 [1st Dept. 1996]). Mere conclusory assertions will not suffice ( Neos v. Lacey, 291 AD2d 434 [2d Dept. 2002]; TMP Worlwide Inc. v. Franzino, 269 AD2d 332 [1st Dept. 2000]).
With respect to the first part of the test, the threshold inquiry is whether the movant has tendered sufficient evidence demonstrating ultimate success on the merits in the underlying action ( Doe at 750-751). The law does not require that the movant tender conclusive proof beyond any factual dispute ( 1234 Broadway LLC v. West Side SRO Law Project, Goddard Riverside Community Center , 86 AD3d 18 , 23 [1st Dept. 2011]).
Turning to the second part of the test, "the movant must establish not a mere possibility that it will be irreparably harmed, but that it is likely to suffer irreparable harm if equitable relief is denied" ( Natsource LLC v. Paribello, 151 F. Supp.2d 465,469 [SDNY 2001]). The irreparable harm must be imminent, not remote or speculative ( Golden v. Steam Heat, Inc., 216 AD2d 440, 442 [2d Dept. 1995]).
Last, to establish that a balancing of the equities favors the movant's position, the movant must show that the absence of a preliminary injunction would cause it "greater injury than the imposition of the injunction would inflict upon the nonmoving party ( Copart of Conn., Inc. v. Long Island Auto Realty, LLC , 42 AD3d 420 [2d Dept. 2007]).
In this case, the movant is the City of White Plains. Under General City Law § 20 (22), a city is vested with power "[t]o regulate by ordinance or local law any matter within the powers of the city, and to provide penalties, forfeitures and imprisonment to punish violations thereof, and to maintain an action or special proceeding in a court of competent jurisdiction to compel compliance with or restrain by injunction the violation of any such ordinance or local law, notwithstanding that a penalty, forfeiture and/or imprisonment may have been provided to punish violations thereof."
Interpreting a statute similar to General City Law § 20 (22), the Appellate Division, Second Department has found an exception to the tripartite test by holding that a town's application for a preliminary injunction need not show irreparable harm. In its analysis, the Appellate Division emphasized that Town Law § 268 granted the movant authority to seek injunctive relief without a requisite showing of "special damage or injury to the public" ( see Town of Islip v. Clark, 90 AD2d 500 [2d Dept. 1982]). In a parallel analysis, General City Law § 20 permits a city to pursue injunctive relief with no requirement that the city's application show irreparable harm.
As relevant here, Town Law § 268 (2) provides as follows: "In case any building or structure is erected, constructed, reconstructed, altered, converted or maintained, or any building, structure or land is used, or any land is divided into lots, blocks, or sites in violation of this article or of any local law, ordinance or other regulation made under the authority conferred thereby, the proper local authorities of the town, in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, conversion, maintenance, use or division of land, to restrain, correct or abate such violation. . . ."
Under a similar statute, a village seeking injunctive relief need not show irreparable harm (Village Law § 7-714; Incorporated Village of Plandome Manor v. Ioannou , 54 AD3d 364 [2d Dept. 2008]). However, unlike the City Court, a Village Court has no authority to grant an injunction ( compare Uniform Justice Court Act § 209 and Uniform City Court Act § 209 [b][2-a]).
Consistent with the foregoing, and pursuant to the authority vested in the City of White Plains under General City Law § 20 (22), the instant application for a preliminary injunction need not establish the element of irreparable harm ( see City of Utica v. Ortner, 256 AD 1039 [4th Dept. 1939][no special damage or injury to the public need be alleged]; accord City of Syracuse v. Penny, 59 Misc 2d 818, 820 [Sup. Ct. Onondaga Co. 1969]; see also County of Westchester v. United Water New Rochelle , 32 AD3d 979 [2d Dept. 2006][on an application for a preliminary injunction, a municipality must demonstrate that it is likely to succeed on the merits of its case and that the equities weigh in its favor]; compare City of New York v. Times' Up, Inc., 11 Misc 3d 1052[A][Sup. Ct. NY Co. 2006][in the absence of an alleged violation of zoning law or nuisance abatement law, the City was required to satisfy tripartite test]).
Accordingly, in order to succeed on its application for a preliminary injunction, the City must meet a two-part test: (1) a likelihood of success on the merits; and (2) that a balancing of the equities favors the City's position.
The moving papers present sufficient evidence that the defendants use of 139 Westmorland Avenue as a lot for the storage and parking of school buses is a violation of § 7.1 and § 7.1.3 of the Zoning Ordinance of the City of White Plains. There is no factual dispute that the use of the subject property was done without an approved site plan — a clear violation of local law. Defendants argue that numerous steps have been taken to comply with the local law. Nonetheless, it remains undisputed that defendants continue to use the subject property without an approved site plan. Moreover, defendants proffer nothing more than a conclusory denial of guilt. Accordingly, the City has established a likelihood of success on its claim that defendants have violated § 7.1 and § 7.1.3 of the Zoning Ordinance of the City of White Plains.
Defendants have retained the services of legal counsel, consulting firms and engineers in an effort to comply with the local law. In addition, since June 10, 2010, defendants have submitted plans/proposals and have met on numerous occasions with City officials in an effort to resolve the alleged violation.
Turning to a balancing of the equities, the City asserts, without factual support or evidentiary detail, that the defendants use of the subject property adversely impacts traffic patterns in the surrounding neighborhood and poses a risk of contaminating the Bronx River with storm water run off. While community and environmental safety are of paramount importance, absent from the moving papers is a documented incident or other specific event which suggests that the above concerns currently exist or are reasonably likely to occur. In contrast, the defendants indicate that they provide a valuable transportation service for thousands of White Plains students; that more than one-hundred of defendants' employees could be adversely affected if the defendants are enjoined from using the subject property; that the area surrounding the subject property is largely industrial; that despite an aggressive search for alternative space in approximately six locations, defendants have been unable to secure another site which can accommodate its fleet of seventy buses; that defendants have established and implemented internal guidelines which mitigate community concerns about bus traffic in the area; that defendants have and continue to pursue in good faith all requirements necessary to obtain an approved site plan; and that adverse impact upon the environment is non-existent.
The Bronx River, approximately twenty-four miles long, flows south past the City of White Plains, dividing Yonkers from Mount Vernon and the East Bronx from the West Bronx. This watercourse flows through the New York Botanical Garden and the Bronx Zoo, eventually emptying into the East River, a tidal strait connected to the Long Island Sound.
In balancing the equities, a court may consider the affect a preliminary injunction will have on the public interest ( see L.J. Coppola, Inc. v. Park Mechanical Corp., 131 AD2d 641, 642 [2d Dept. 1987]; Destiny USA Holdings, LLC v. Citigroup Global Markets Realty Corp., 24 Misc 3d 1222[A][Sup. Ct. Onondaga Co. 2009]). Among the equitable considerations put forth, the undisputed fact remains that defendants provide a vital transportation service for the many families and students in the White Plains School District and surrounding communities. The request for a preliminary injunction comes at the beginning of the academic year, leaving little or no time for the arrangement of reasonable and appropriate alternative transportation. Additionally, it is undisputed that over one-hundred individuals are employed by the defendants. In light of the current economic climate and depressed job market, a disruption to their employment presents a compelling equitable consideration which also tips in favor of denying the injunctive relief.
Conclusion
Upon the foregoing, the Court concludes that the movant has failed to show that the absence of a preliminary injunction would cause it greater injury than the imposition of the injunction would have upon the defendants ( Copart of Conn., Inc. supra). Accordingly, having failed to demonstrate that the equities are in its favor, the City's application for a preliminary injunction is denied without a hearing ( see Marders the Landscape Store v. Barylski, 303 AD2d 465 [2d Dept. 2003][hearing not required where movant fails to meet its burden]).
Last, the Second Department has recognized that a preliminary injunction in the nature of mandamus should not be granted during the course of litigation without a showing of extraordinary circumstances where the status quo would be disturbed and movant would be granted ultimate relief in the action ( see Village of Westhampton Beach v. Cayea , 38 AD3d 760 , 762 [2d Dept. 2007]). In addition, the same Court recognized that granting such relief could cause a defendant to do unnecessary work and diminish the incentive for a plaintiff to prosecute an action to its conclusion ( Id.). The Courts finds this reasoning to be relevant in the present case.
THIS DECISION CONSTITUTES THE ORDER OF THE COURT