Seven Acre Wood Street Associates, Inc. v. Town of Bedford, 755 N.Y.S.2d 257

Seven Acre Wood Street Associates, Inc. v. Town of Bedford

755 N.Y.S.2d 257 | N.Y. App. Div. | 2003

In an action, inter alia, to recover damages for trespass and nuisance, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), dated December 20, 2001, which denied its motion for a preliminary injunction.

Ordered that the order is affirmed, with costs.

In support of its motion for a preliminary injunction, the plaintiff submitted an affirmation from an attorney who was the principal shareholder of the plaintiff corporation. The Supreme Court properly disregarded the affirmation, since the attorney should have submitted an affidavit (see CPLR 2106; Slavenburg Corp. v Opus Apparel, 53 NY2d 799, 801 [1981]; Pisacreta v Minniti, 265 AD2d 540 [1999]). The deficiency rendered the plaintiffs moving papers insufficient to support the relief requested.

*512In any event, the plaintiff failed to make the requisite showing for a preliminary injunction (see Doe v Axelrod, 73 NY2d 748, 750 [1988]; Mosseri v Fried, 289 AD2d 545 [2001]). Not only were the facts sharply disputed in this case, but the plaintiff failed to show that it was likely to succeed on the merits of its claims alleging trespass and nuisance (see Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 570 [1977]; Kossoff v Rathgeb-Walsh, 3 NY2d 583, 589-590 [1958]; Gollomp v Dubbs, 283 AD2d 550 [2001]). Furthermore, the plaintiff was collaterally estopped from relitigating the issue of the installation of two culverts by the defendant Town of Bed-ford, since this issue was litigated previously in an action entitled Seven Acre Wood St. Assoc. v Wood, in the Supreme Court, Westchester County, under Index Nó. 16042/97, wherein a motion for a preliminary injunction involving the same culverts was denied, and the plaintiff had a full and fair opportunity to contest the prior determination (see Matter of Juan C. v Cortines, 89 NY2d 659, 667 [1997]; Kaufman v Eli Lilly & Co., 65 NY2d 449, 455 [1985]). Santucci, J.P., Feuerstein, Luciano and Schmidt, JJ., concur.