Ginsburg v. Ock-A-Bock Community Ass'n

Nov 21, 2006
Versions:34 A.D.3d 637
825 N.Y.S.2d 119

In an action, inter alia, to compel the determination of claims to certain real property pursuant to RPAPL article 15, the plaintiffs appeal (1) from so much of an order of the Supreme Court, Suffolk County (Henry, J.), dated February 7, 2005, as denied their motion for a preliminary injunction and (2), as limited by their brief, from so much of an order of the same court dated August 18, 2005, as, upon renewal, adhered to the original determination.

Ordered that the appeal from the order dated February 7, 2005 is dismissed as that order was superseded by the order dated August 18, 2005, made upon renewal; and it is further,

Ordered that the order dated August 18, 2005 is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the defendants payable by the plaintiffs.

On a motion for a preliminary injunction, the movant has the burden of demonstrating, by clear and convincing evidence, that (1) the movant will likely succeed on the merits of the action, (2) the movant will suffer irreparable injury absent the issuance of a preliminary injunction, and (3) the balance of equities is in favor of the movant (see CPLR 6301; Aetna Ins. Co. v Capasso, 75 NY2d 860 [1990]; W.T. Grant Co. v Srogi, 52 NY2d 496 [1981]; Price Paper & Twine Co. v Miller, 182 AD2d 748 [1992]; Albini v Solork Assoc., 37 AD2d 835 [1971]). The determination to grant or deny a preliminary injunction rests in the sound discretion of the court (see Ying Fung Moy v Hohi Umeki, 10 AD3d 604 [2004]).

In the instant action, regarding the rights of access to a beach, the Supreme Court providently exercised its discretion in denying the plaintiffs’ motion for a preliminary injunction, as well as, upon renewal, adhering to that determination, on the ground that they failed to demonstrate they would suffer irreparable injury absent the grant of the injunction (see Schweizer v Town of Smithtown, 19 AD3d 682 [2005]). Florio, J.P., Krausman, Lunn and Covello, JJ., concur.