Burke v FreijeBurke v Freije
PRESENT: HON. EUGENE D. FAUGHNAN Justice Presiding
APPEARANCES:
Counsel for Plaintiffs: WHITEMAN OSTERMAN & HANNA By: Gabriella R. Levine, Esq. 1 Commerce Plaza, Suite 19 Albany, NY 12260-1000
Counsel for Defendants: BUTLER MUCCI AND GRACE, LLP By: Matthew Butler, Esq. 231-241 Main Street Vestal, NY 13850
DECISION AND ORDER
This matter is before the Court to consider two separate motions. The first motion, filed by Plaintiffs Thomas Burke and Lisa Burke (“Plaintiffs“), seeks a preliminary injunction enjoining Defendants Ryan Freije and Erin Freije (“Defendants“) from continuing construction of a pole barn/garage and single-family residence on their property, pending final resolution of the action. Defendants filed a cross-motion to dismiss Plaintiffs’ Complaint, and opposition to Plaintiffs’ motion. Oral argument was conducted, and attorneys for both parties were present. After due deliberation, this Decision and Order constitutes the determination of this Court.1
BACKGROUND FACTS
The Court is already familiar with this dispute, having issued two written determinations in a prior related proceeding (EFCA2024001720). The facts are more fully set forth in those determinations and will be highlighted as pertinent here. That case was an Article 78 action filed by Ryan Freije challenging the denial of two variance applications.
Plaintiffs have lived at 831 Skylane Terrace in Endwell, NY since 1998.2 In February 2023, the Defendants purchased a 22-acre parcel of land at 1000 Biscayne Terrace, which is adjacent to Plaintiffs’ property. Defendants sought to construct a new single-family residence and a second structure which has been described as a “pole barn“, “garage“, “barn/garage structure” or “accessory building“. In their papers, Defendants usually refer to the structure as a garage.
Due to issues in the topography of the land, Defendants’ initial design called for the second building to be located in front of the main building. That configuration could potentially require a zoning variance, because per the Town Code “[a]ccessory buildings, other than detached accessory garages, shall be located to the rear of the principal building.”
After the Court‘s determination in EFCA2024001720, Thomas Burke sought to intervene in that case and also moved to renew and/or reargue the April 10, 2025 Decision, Order and Judgment. Following briefing and arguments, the Court issued a Decision and Order on September 25, 2025 denying Thomas Burke‘s motions. The Court concluded that Burke was not a party to that action and he lacked standing to renew and/or reargue; further, his application was untimely. Thomas Burke has appealed from the September 25, 2025 Decision and Order, and it appears that his appeal is still pending.
Plaintiffs commenced this action on September 26, 2025, the day after the Court denied Thomas Burke‘s motion in EFCA2024001720. Plaintiffs’ Complaint contains four causes of action: breach of restrictive covenants, zoning violation, private nuisance and nuisance per se. Plaintiffs then filed a motion on September 29, 2025 for an injunction, followed by Defendants’ cross-motion to dismiss on October 16, 2025.
In support of their motion, Plaintiffs filed an affirmation of Thomas Burke, dated September 25, 2025 with Exhibits “A” through “S“, an attorney affirmation of Gabriella R. Levine, Esq., dated September 29, 2025 and a Memorandum of Law. Defendants submitted an affidavit of Ryan Freije, dated October 16, 2025, with one Exhibit, an attorney affirmation of Matthew C. Butler, Esq., dated October 16, 2025 and a Memorandum of Law. In Defendants’ opposition, it is noted that the garage construction has been completed. (Ryan Freije affidavit dated 10/16/25 and Exhibit, NYSCEF Doc. Nos. 34, 35). Plaintiffs filed additional papers in support of their motion, and in opposition to Defendants’ cross-motion. Following oral
LEGAL DISCUSSION AND ANALYSIS
I. Plaintiff‘s motion for a preliminary injunction
Plaintiffs seek a preliminary injunction to prevent Defendants from continuing construction on the residence and garage while the case is litigated. Defendants argue an injunction would be moot because the garage is already complete.
The two distinct concepts presented on Plaintiffs’ motion are preliminary injunction and mootness. The Court will begin with an overview of preliminary injunctions, then move to a discussion of mootness, and then consider how mootness bears on the current situation.
A. Standard for preliminary injunction
A preliminary injunction is a mechanism used “to maintain the status quo and prevent the dissipation of property that could render a judgment ineffectual” Waldron v. Hoffman, 130 AD3d 1239, 1239 (3rd Dept. 2015); Rattner & Assocs. v. Sears, Roebuck & Co., 294 AD2d 346, 346 (2nd Dept. 2002); see,
Preliminary injunctions are equitable in nature, and “because preliminary injunctions prevent the litigants from taking actions that they are otherwise legally entitled to take in advance of an adjudication on the merits, they should be issued cautiously” Uniformed Firefighters Assn. of Greater N. Y. v. City of New York, 79 NY2d 236, 241 (1992); see, Rural Community Coalition, Inc. v. Village of Bloomingburg, 118 AD3d 1092, 1095 (3rd Dept. 2014) (“A preliminary injunction constitutes drastic relief” [internal quotation marks and end citations omitted]). The grant or denial of a preliminary injunction is not intended as a determination of the ultimate rights of the parties. See, R. Kelly Freedman Holding Group, LLC v. P & M Brick, LLC, 242 AD3d 1402 (3rd Dept. 2025); Rural Community Coalition, Inc. v. Village of Bloomingburg, 118 AD3d 1092; Matter of Wheaton/TMW Fourth Ave., LP v. New York City Dept. of Bldgs., 65 AD3d 1051 (2nd Dept. 2009). The proponent has an initial burden to show a probability of success, but “[t]he existence of a question of fact ‘does not prevent a party from establishing a likelihood of success on the merits; success need not be a certainty to obtain a preliminary injunction‘” Petry v. Gillon, 199 AD3d 1277, 1278-1279 (3rd Dept. 2021), quoting Cooperstown Capital, LLC v. Patton, 60 AD3d at 1252-1253.
B. Mootness
Defendants contend that the application for a preliminary injunction is moot, since the garage has already been constructed. The term “moot” has been defined as “[h]aving no practical significance; hypothetical or academic” or “no longer involving a real, live controversy” Black‘s Law Dictionary (12th ed. 2024). It has also been recognized that:
“Typically, the doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy” (Matter of Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d 165, 172, 774 NE2d 193, 746 NYS2d 429 [2002] [citation omitted]). Where a change in circumstances involves the substantial completion of construction, “courts must consider several factors, including whether the challengers sought preliminary injunctive relief or otherwise attempted to preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation” (Town of N Elba v Grimditch, 131 AD3d 150, 156-157, 13 NYS3d 601 [2015] [internal quotation marks, brackets and citations omitted], lv denied 26 NY3d 903 [2015]). Although injunctive relief is theoretically available, as a project can be dismantled, courts consider how far the work has progressed toward completion in determining mootness (see Matter of Kowalczyk v Town of Amsterdam Zoning Bd of Appeals, 95 AD3d 1475, 1477, 944 NYS2d 660 [2012]). A determination of mootness is fact-driven (see Matter of Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d at 173).
Matter of Bothar Constr., LLC v. Dominguez, 201 AD3d 1231, 1232-1234 (3rd Dept. 2022).
C. Is the preliminary injunction moot because of the completion of the garage?
Mootness can refer to interim relief or ultimate relief. Defendants assert that the garage construction has been completed, so the question of enjoining work on that building (interim relief) is moot. Specifically, the Court will not be able to stop Defendants from undertaking further construction on the garage because it is already completed. Putting aside for the moment the issue of the house construction, the issue of a preliminary injunction is, indeed, moot- the Court cannot grant the interim relief to halt construction of the garage which has already been completed. Whatever status quo was sought to be maintained by preventing construction of the garage has been rendered obsolete. The Court can find that a preliminary injunction is moot because the action sought to be enjoined has already occurred, but the Court can still conclude that the matter is not completely moot, i.e. Plaintiff can still seek other remedies, such as a permanent injunction, or damages.
A finding of mootness can result in dismissal of an action, in appropriate cases. Sometimes that is based on the actions of the parties in seeking the interim relief. See, e.g. Matter of City of Ithaca v. New York State Dept. of Envtl. Conservation, 188 AD3d 1322 (3rd Dept. 2020) [petitioners did not promptly seek injunctive relief and the construction had proceeded to a point where it would not be safe to stop it]; Matter of Kowalczyk v. Town of Amsterdam, 95 AD3d 1475 (3rd Dept. 2012) [garage had been fully constructed and petitioners had failed to seek injunctive relief]; Kverel v. Silverman, 172 AD3d 1345 (2nd Dept. 2019) [plaintiffs’ delay in protecting their interests constituted laches barring the action]; Matter of Birch Tree Partners, LLC v. Zoning Bd. of Appeals of Town of E. Hampton, 106 AD3d 1083 (2nd Dept. 2013) [petition properly dismissed due to petitioner‘s undue delay in challenging construction]). Other times it is based on the fact that the underlying dispute has been resolved. See, e.g. Matter of Town of Colonie v. City of New York, 237 AD3d 1398, 1401 (3rd Dept. 2025) (Town‘s action to prevent asylum refugees from staying at a hotel within the Town was moot because of the expiration of a County Emergency Order and the hotel was no longer being used
Up to this point, the Court‘s discussion has been focused on the garage, as that has also been the primary target of the parties’ arguments. However, the Court is cognizant of the fact that Plaintiffs’ request seeks a preliminary injunction as to both structures in that it asks the Court to enjoin the Defendants “from continuing development in furtherance of conducting a pole barn and single-family residence on their property pending the final resolution of this action” Notice of Motion, NYSCEF Doc. No. 3; Plaintiffs’ Memorandum in Support of Motion, NYSCEF Doc. No. 25 at p.19; Plaintiffs’ Memorandum of Law in Further Support of their Motion, NYSCEF Doc. No. 60 at p. 34. Defendants have not offered an update concerning the status of construction concerning the primary dwelling. (Plaintiffs’ Memorandum of Law, NYSCEF Doc. No. 60 at pp. 33-34, note 3).
Nevertheless, it is clear that the garage is the main concern for the Plaintiffs, as its size and proximity to their property creates an obstruction to Plaintiffs’ view. The Plaintiffs do not challenge the house construction per se, but only the fact that the garage is not properly situated in relation to the house. Both variances that were sought by the Defendants related to the garage. The first variance concerns the location of the garage vis a vis the main building, and the second deals with the size of the garage.
Even though the current state of construction concerning the primary building is unknown, there is nothing about the residence in particular that is alleged to be improper. It is only its orientation to the garage that is of concern. If not for the garage, there does not appear to be any legal challenges to the residence. Plaintiffs’ complaints are really about the garage, and that is the structure that they want moved, or removed. Therefore, the current status of the residence does not impact the Court‘s consideration. If Plaintiffs prevail, the garage or residence might have to be removed and re-situated. To the extent that there is potential that a final determination could impact the validity of residential construction, Defendants continue construction at their own risk. See e.g., Matter of Village of Chestnut Ridge v. Town of Ramapo, 99 AD3d 918 (2nd Dept. 2012).
Plaintiffs believe Defendants should not be permitted to seek protection based on the mootness doctrine. “Whether the controversy has become moot requires the consideration of various factors, including how far the construction work has progressed towards completion,
In Grimditch, the defendants constructed two boathouses on lakefront property on Lake Placid, without ever getting permits. Soon after construction began on the first boathouse, the Code Enforcement Officer “issued the first of three stop work orders and [plaintiffs] moved for a preliminary injunction to halt construction by [defendants].” Id. at 153-154. During the litigation, defendants continued construction on the boathouses without obtaining building permits. The Grimditch defendants argued that the claims were moot or barred by laches because the boathouses had been completed. The construction of the boathouses in Grimditch had proceeded without permits and in disregard of stop work orders, in what the court described as a race to completion. The challengers had moved promptly and repeatedly to stop the construction. Given those factors, the Third Department concluded it would be inappropriate to invoke the mootness doctrine, which would effectively allow defendants to evade court review and reward them for failing to observe procedures and orders. Therefore, even though the boathouses had been completed, the court ruled that the claims were not moot, and that injunctive relief, including removal of the boathouses, was appropriate.
The present case presents a much different factual background. The Freijes applied to the ZBA for two variances in 2024, which were denied. Defendants then commenced an Article 78 proceeding that was decided in their favor. The Court‘s April 10, 2025 Decision, Order and Judgment observed that the siting question was already resolved by virtue of the fact that Defendants’ adjustments had satisfied the Town, and the Court concluded that the height variance should be granted. That was the Court‘s final determination on the 2024 variance requests. Following this Court‘s decree on April 10, 2025, the Friejes moved forward with their
The facts show that the Freijes obtained the necessary approvals and Court orders. Those facts distinguish this case from Grimditch. Similarly, in another case cited by Plaintiffs, Matter of Uciechowski v. Ehrlich, 221 AD2d 866 (3rd Dept. 1995), the defendants had proceeded without approval or permits, which differs from the current case.
Furthermore, the Burkes did not move promptly to prevent construction. The plaintiffs in Grimditch immediately challenged the construction being undertaken which was clearly visible. Here, Plaintiffs did not commence this action until September 26, 2025. The ZBA held a public hearing on the variances in March 2024 at which time Mr. Burke was present and voiced his concerns. (See NYSCEF Doc. No. 15). He was aware of the Defendants’ plans but did not attempt to intervene in EFCA2024001720 until after a decision was rendered. He did not attempt to enjoin construction until September 26, 2025, even though the construction was visible from Plaintiffs’ property. Plaintiffs did not make sufficient efforts to maintain the status quo, and Defendants did not undertake to defy the Town‘s authority or trample the rights of others by rushing the project.
It is the Court‘s conclusion that the completion of the garage prevents the Court from granting a preliminary injunction to stop construction on the garage. The request for that injunction is essentially academic because it has already happened. In addition, even though the residence construction is a separate activity, there is no independent basis to enjoin that construction either. Thus, the request for a preliminary injunction is moot.
Plaintiffs are not left without recourse because they also seek a permanent injunction (Plaintiffs’ Complaint NYSCEF Doc. No. 2, ¶¶ 153, 161 and 169), which carries with it the possibility that an “offending structure[] ordinarily can be dismantled” Town of N. Elba v. Grimditch, 131 AD3d 150, 157. If Plaintiffs prevail, then they may pursue such a remedy. Since there are other avenues available to Plaintiffs besides a preliminary injunction, the matter is not
D. A preliminary injunction, even if not moot, is not appropriate
Even if the Court concluded that a preliminary injunction is not moot, Plaintiffs have not established their entitlement to a preliminary injunction. In particular, they have not shown any of the three elements: “irreparable harm“, a likelihood of success on the merits or that the balance of equities tips in their favor. See, Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 NY3d 839.
1. Irreparable harm
There is no irreparable harm because removal of an offending structure may be available. See, Town of N. Elba v. Grimditch, 131 AD3d 150. Since removal is still a possibility, Plaintiffs would be in the same position as they were prior to the construction, and the damage will have been undone. Therefore, the harm is not irreparable, and denial of a preliminary injunction is appropriate. See, Catalogne v. Class Action Recovery, LLC, 2026 NY App. Div. LEXIS 1138 (2nd Dept. 2026).
2. Likelihood of success of the merits
Plaintiffs have not shown a likelihood of success on the merits. Plaintiffs’ causes of action are predicated on three legal theories (breach of restrictive covenant, zoning violations, and nuisance). With regard to breach of restrictive covenant, Plaintiffs allege that the Plaintiffs’ and Defendants’ property rights derive from the same grantor, Frazier & Son, Inc., in 1963, and are subject to the same restrictive covenant. Plaintiffs highlight the following language in Defendants’ deed: (1) “no lots shall be subdivided to allow more than one house“; (2) no temporary dwelling structures nor any “trailer, tent, shack, barn or other outbuilding” shall be permitted on the premises and the exterior of all buildings must be “brick, stone, or stucco construction, or sides or shingles;” and (3) no non-residential purposes are permitted on any of the surrounding circumstances, and “no activities shall be carried on ... which may or shall
3. Balance of the equities
The Court is also not persuaded that the balance of equities tip in Plaintiffs favor. Defendants’ construction was after the successful Article 78 action, and with Town approvals. Thomas Burke noted his objection during the ZBA review, and made unsuccessful efforts to intervene in EFCA2024001720, rather than seeking an injunction. Instead, he waited until after construction was complete to file this case and try to enjoin Defendants’ construction. If the Court grants a preliminary injunction, it could not stop the garage construction, it could only stop construction on the house- but there is no independent argument against the house, and construction time is limited due to weather. Further, now that the garage is complete, the only way to provide relief to the Plaintiffs is by modification or re-siting of the garage (which would only be appropriate after full development of the record), or by monetary damages (which are not
The Court concludes that Plaintiffs are not entitled to a preliminary injunction. Accordingly, Plaintiffs’ motion must be denied.
II. Defendants’ motion to dismiss
Defendants have also filed a cross-motion to dismiss Plaintiffs’ Complaint. Some of the arguments used in opposition to Plaintiffs’ motion for a preliminary injunction are also used to support Defendants’ motion to dismiss. Defendants contend that they are entitled to dismissal under
“In the context of a
Defendants correctly assert that the deeds, and their restrictive covenants, are materials that can be used under
Defendants also argue that Plaintiffs’ Complaint is barred by res judicata and collateral estoppel [
This Court‘s determinations in EFCA2024001720 cannot form the basis for res judicata or collateral estoppel because the Burkes were not party to that action (in fact, the Court denied Thomas Burke‘s motion to intervene) and the only issue that the Court determined was that the Freijes should be allowed a height variance. The Court was not asked to rule upon issues such as
The Court concludes that Plaintiffs are not limited by the doctrines of res judicata or collateral estoppel. There earlier case did not involve the same parties; Plaintiffs were not even allowed to intervene in the earlier action.
The next matter to be addressed is the
The Court has already discussed the Plaintiffs’ cause of action for breach of restrictive covenants and concluded that it is not subject to dismissal based on documentary evidence, standing or res judicata/estoppel. It also does state a cause of action because of many of the same reasons. Plaintiffs have alleged that there is a common grantor and that they should be allowed to enforce the restrictive covenants. Those include limitations on the construction of pole barns. The Court cannot make findings of fact at this point, but the allegations are sufficient to state a cause of action.
With respect to the claims for zoning violations and nuisance, the Court concludes that Plaintiffs’ Complaint alleges sufficient facts to avoid dismissal. Even if the properties are not
CONCLUSION
Based on all the foregoing, the Court concludes that Plaintiffs are not entitled to a preliminary injunction because, among other things, the garage has already been built and there is no basis to halt construction of the house-bearing in mind that Defendants bear the risk if they proceed. Further, the Court finds that Plaintiffs’ Complaint sufficiently sets forth causes of action described therein, and that Plaintiffs are not estopped from pursing their claims.
Accordingly, it is hereby
ORDERED, that Plaintiffs’ motion for a preliminary injunction is DENIED, and it is further
OREDRED, that Defendants’ cross-motion to dismiss Plaintiffs’ Complaint is DENIED, and it is further
Any issues raised by the parties and not specifically addressed herein have been found to be without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THIS COURT.
Dated: March 26, 2026 Binghamton, New York
HON. EUGENE D. FAUGHNAN
Supreme Court Justice
Broome County Supreme Court
The NYSCEF website has received an electronic filing on 03/26/2026 03:55 PM. Please keep this notice as a confirmation of this filing.
EFCA2025003038 Thomas Burke et al v. Ryan Freije et al Assigned Judge: Eugene D. Faughnan
Documents Received on 03/26/2026 03:55 PM Doc # 76 Document Type DECISION + ORDER ON MOTION, Motion #1
Filing User Filed by court user.
E-mail Notifications An email regarding this filing has been sent to the following on 03/26/2026 03:55 PM:
MATTHEW CHRISTOPHER BUTLER - Lbutler@butlerlawoffices.com GABRIELLA REGINA LEVINE - glevine@woh.com CHRISTINA FRANCES VITOLO - cvitolo@woh.com
Aaron M. Martin, Broome County Clerk Phone: Phone: 607.778.2255 Fax: Fax: 607.778.2243 Website: http://www.gobroomecounty.com/clerk
NYSCEF Resource Center, nyscef@nycourts.gov Phone: (646) 386-3033 | Fax: (212) 401-9146 | Website: www.nycourts.gov/efile
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