Town of Oyster Bay v. Sodomsky

Oct 10, 1989
Versions:154 A.D.2d 455
546 N.Y.S.2d 21
1989 N.Y. App. Div. LEXIS 12517

— In an action for permanent injunctive relief, the plaintiff appeals from an order of the Supreme Court, Nassau County (Burke, J.), dated March 29, 1988, which denied its motion for preliminary injunctive relief.

Ordered that the order is affirmed, without costs or disbursements.

Pursuant to Town Law §§ 135 and 268, the plaintiff seeks to enjoin the defendants from, inter alia, using their premises for auto repair and related activities. Although the plaintiff had no obligation on its application for preliminary injunctive relief to meet the three-pronged test generally applicable to such requests (see, City of New York v Bilynn Realty Corp., 118 AD2d 511; City of Utica v Ortner, 256 App Div 1039), it was nonetheless required to come forward with a strong prima facie showing that the defendants are violating its zoning ordinance (see, City of New York v Cincotta, 133 AD2d 244; see also, Village of Pelham Manor v Crea, 112 AD2d 415). Since a substantial question exists as to whether the defendants’ use of their premises is a continuation of a legal nonconforming use, denial of the plaintiff’s application for preliminary injunctive relief was a proper exercise of discretion. Mangano, J. P., Bracken, Kunzeman and Harwood, JJ., concur.