Opinion
479 CA 16-01957.
07-07-2017
In the Matter of TOWN OF CICERO, Petitioner–Appellant, v. LAKESHORE ESTATES, LLC, and Ovadia Avraham, Respondents–Respondents.
Germain & Germain, LLP, Syracuse (John J. Marzocchi of Counsel), for Petitioner–Appellant.
Germain & Germain, LLP, Syracuse (John J. Marzocchi of Counsel), for Petitioner–Appellant.
PRESENT: WHALEN, P.J., LINDLEY, DeJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM:
Without filing or serving either a summons, a complaint, a petition, or a notice of petition in this matter, the Town of Cicero (Town), which styles itself "petitioner" herein, obtained and served upon the so-styled "respondents" an order to show cause demanding a permanent injunction requiring that certain structures constructed by respondents on their property in alleged violation of the Town's zoning and building codes be removed at respondents' expense. The Town appeals from an order that purportedly denied the "Petition."
"[T]he valid commencement of an action is a condition precedent to [Supreme Court's] acquiring the jurisdiction even to entertain an application for a[n] ... injunction" ( Matter of Hart Is. Comm. v. Koch, 150 A.D.2d 269, 272, 541 N.Y.S.2d 790, lv. denied 75 N.Y.2d 705, 552 N.Y.S.2d 928, 552 N.E.2d 176 ; see Matter of Caruso v. Ward, 146 A.D.2d 486, 487, 536 N.Y.S.2d 447 ; see also Uniformed Firefighters Assn. of Greater N.Y. v. City of New York, 79 N.Y.2d 236, 239, 581 N.Y.S.2d 734, 590 N.E.2d 719 ). Here, however, there is no action supporting the application for an injunction. Indeed, the order to show cause and supporting papers themselves constitute the only request for an injunction. While " ‘courts are empowered and indeed directed to convert a civil judicial proceeding not brought in the proper form into one which would be in proper form, rather than to grant a dismissal’ " ( Hodges v. Beattie, 68 A.D.3d 1597, 1598, 893 N.Y.S.2d 289 ), more than improper form is involved here (cf. Matter of State of New York [Essex Prop. Mgt., LLC], 152 A.D.3d 1169, 59 N.Y.S.3d 624 ). Converting the order to show cause and supporting papers into a summons and complaint in these circumstances would effectively permit the Town to seek an injunction by motion, a result that is at odds with the well-established principle that "[t]he pendency of an action is an indispensable prerequisite to the granting of a[n] ... injunction" (Tribune Print. Co. v. 263 Ninth Ave. Realty, 88 A.D.2d 877, 879, 452 N.Y.S.2d 590, affd. 57 N.Y.2d 1038, 457 N.Y.S.2d 785, 444 N.E.2d 35 ; see CPLR 6301 ; Matter of Church Mut. Ins. Co. v. People, 251 A.D.2d 1014, 1014, 674 N.Y.S.2d 201 ). We thus conclude that the court lacked jurisdiction to entertain the Town's request (see Hart Is. Comm., 150 A.D.2d at 272, 541 N.Y.S.2d 790 ). Without an underlying action the order putatively on appeal does not constitute an appealable paper (see CPLR 5701[a], [c] ; see generally Noghrey v. Town of Brookhaven, 305 A.D.2d 474, 474–475, 760 N.Y.S.2d 195 ; Gastel v. Bridges, 110 A.D.2d 146, 146, 493 N.Y.S.2d 674 ). The appeal must therefore be dismissed.
It is hereby ORDERED that said appeal is unanimously dismissed without costs.