| Volunteer Fire Assn. of Tappan, Inc. v County of Rockland |
| 2009 NY Slip Op 01638 [60 AD3d 666] |
| March 3, 2009 |
| Appellate Division, Second Department |
| 43—Volunteer Fire Association of Tappan, Inc.,Appellant, v County of Rockland et al., Respondents, et al.,Defendant. |
—[*1] Patricia Zugibe, County Attorney, New City, N.Y. (Thomas Simeti and Michael O'Connor ofcounsel), for respondents.
In a hybrid action, inter alia, for injunctive relief and to recover damages for trespass, andproceeding, in effect, pursuant to CPLR article 78 to review an undated determination of theCounty of Rockland, the County of Rockland Highway Department, and Andrew Connors, ineffect, approving the modification of a certain road reconstruction project consisting of, amongother things, the installation of a raised curb along the real property of the plaintiff/petitioner at123 Washington Street in the Town of Orangetown, the plaintiff/petitioner appeals from an orderof the Supreme Court, Rockland County (Berliner, J.), dated April 1, 2008, which denied itsmotion in the action, in effect, for a preliminary injunction enjoining the defendants/respondentsfrom performing any work of any type on the subject road reconstruction project along itsproperty pendente lite and compelling them to remove the raised curb already installed there. Bydecision and order on motion dated April 30, 2008, this Court granted the motion of theplaintiff/petitioner for a preliminary injunction enjoining the defendants/respondents fromperforming any work of any type on the subject road reconstruction project pending hearing anddetermination of the appeal.
Ordered that the order is reversed, on the law and in the exercise of discretion, with costs,the motion of the plaintiff/petitioner in the action, in effect, for a preliminary injunctionenjoining the defendants/respondents from performing any work of any type on the subject roadreconstruction project along its property at 123 Washington Street in the Town of Orangetownpendente lite, and compelling them to remove the raised curb already installed there is granted,on the condition that the plaintiff/petitioner post an undertaking pursuant to CPLR 6312 (b), inan amount to be fixed by the Supreme Court, Rockland County, and the matter is remitted to theSupreme Court, Rockland County, for further proceedings consistent herewith, including thefixing of the amount of the [*2]undertaking.
In or about May 2000, the County of Rockland undertook a project to rebuild county roadsby reconstructing certain pavement, curbs, and sidewalks. The work was performed bycontractor Morano Brothers Corp. In November 2007, after the project had commenced, AndrewConnors, the Deputy Superintendent of the County of Rockland Highway Department(hereinafter the Highway Department), determined to implement a field change to the projectinvolving the installation of a raised curb on approximately 57 feet of roadway fronting afirehouse owned by the plaintiff/petitioner (hereinafter the plaintiff) at 123 Washington Street inthe Town of Orangetown. In response, the plaintiff commenced the instant hybrid action andCPLR article 78 proceeding contending, inter alia, that the raised curb constituted a trespassupon its property, and materially impeded access to and from its firehouse. The plaintiff furthercontended that the County's decision to install the raised curb was made in violation of the StateEnvironmental Quality Review Act (ECL art 8), and that the County, Connors, and the HighwayDepartment acted in excess of their jurisdiction in violation of Highway Law § 102 (15)and § 102-a.
In order to obtain a preliminary injunction (see CPLR 6301), the moving party mustdemonstrate: (1) a likelihood of success on the merits, (2) an irreparable injury absent theinjunction; and (3) a balancing of the equities in its favor (see Aetna Ins. Co. v Capasso,75 NY2d 860, 862 [1990]; AutomatedWaste Disposal, Inc. v Mid-Hudson Waste, Inc., 50 AD3d 1072, 1072-1073 [2008]; Wiener v Life Style Futon, Inc., 48AD3d 458 [2008]; Iron Mtn. Info.Mgt., Inc. v Pullman, 41 AD3d 656 [2007]). The existence of an issue of fact "shall notin itself be grounds for denial of the motion" (CPLR 6312 [c]; see Stockley v Gorelik, 24 AD3d535, 536 [2005]). While the decision to grant or deny a preliminary injunction rests in thesound discretion of the Supreme Court (see Gluck v Hoary, 55 AD3d 668 [2008]), we find that theSupreme Court improvidently exercised its discretion in denying the plaintiff's motion (cf. Village of Westhampton Beach vCayea, 38 AD3d 760, 762 [2007]). Specifically, the plaintiff demonstrated itsentitlement to a preliminary injunction with respect to the cause of action alleging trespass.
Since CPLR 6312 (b) clearly requires that the party who secures a preliminary injunctionmust post an undertaking (seeWinzelberg v 1319 50th Realty Corp., 52 AD3d 700, 702 [2008]), we remit the matterto the Supreme Court, Rockland County, for that purpose.
To the extent that the plaintiff contends that it was entitled to relief in connection with theCPLR article 78 petition, those contentions are not properly before this Court. [*3]Skelos, J.P., Fisher, Balkin and Belen, JJ., concur.