| Town of Islip v Modica Assoc. of NY 122, LLC |
| 2007 NY Slip Op 08443 [45 AD3d 574] |
| November 7, 2007 |
| Appellate Division, Second Department |
| Town of Islip, Appellant, v Modica Associates of NY 122,LLC, et al., Respondents. |
—[*1]
In an action pursuant to Town Law § 268 (2) for injunctive relief, the plaintiff appealsfrom an order of the Supreme Court, Suffolk County (Spinner, J.), dated June 19, 2006, whichdenied its motion, inter alia, to preliminarily enjoin the defendants from using certain realproperty as a marina or to dock a commercial excursion boat, and vacated a temporary restrainingorder.
Ordered that the order is affirmed, without costs or disbursements
To obtain preliminary injunctive relief based on a violation of its zoning ordinances, a townneed not satisfy the traditional three-part test for injunctive relief, but is required "only [to] showthat it has a likelihood of ultimate success on the merits and that the equities are balanced in itsfavor" (First Franklin Sq. Assoc., LLC vFranklin Sq. Prop. Account, 15 AD3d 529, 533 [2005]; see Town of Huntington vPierce Arrow Realty Corp., 216 AD2d 287, 288 [1995]; Incorporated Vil. of Freeport vJefferson Indoor Mar., 162 AD2d 434, 436 [1990]). To obtain relief, a town must "comeforward with a strong prima facie showing that the defendants are violating its zoning ordinance"(Town of Oyster Bay v Sodomsky, 154 AD2d 455, 455 [1989]; see Town of OysterBay v Dyott, 246 AD2d 531 [1998]). Here, since the Town of Islip failed to make a strongprima facie showing that the use of the subject property as a marina was not a pre-existingnonconforming use, or that the proposed docking of a commercial excursion boat wouldimpermissibly expand such nonconforming use, the Supreme Court providently exercised itsdiscretion in denying the Town's motion for preliminary injunctive relief (see Town ofSouthampton v Sendlewski 156 AD2d 669, 670 [1989]; Town of Oyster Bay vSodomsky, 154 AD2d 455 [1989]; CPLR 4401).[*2]
Contrary to the Town's contention, the Supreme Courtdid not, in effect, award partial summary judgment to the defendants. Schmidt, J.P., Skelos,Lifson and Balkin, JJ., concur.