| Sync Realty Group, Inc. v Rotterdam Ventures, Inc. |
| 2009 NY Slip Op 05067 [63 AD3d 1429] |
| June 18, 2009 |
| Appellate Division, Third Department |
| Sync Realty Group, Inc., Appellant, v Rotterdam Ventures, Inc.,Respondent. |
—[*1] DeAngelus & DeAngelus, Clifton Park (J. David Burke, Schenectady, of counsel) forrespondent.
Malone Jr., J. Appeal from an order of the Supreme Court (Reilly, Jr., J.), entered January14, 2009 in Schenectady County, which denied plaintiff's motion for a preliminary injunction.
Plaintiff and defendant own neighboring parcels of real property in the Town of Rotterdam,Schenectady County. Defendant acquired title to its parcel from the United States in 1969 by adeed in which defendant covenanted to provide sewer service to plaintiff's parcel, then stillowned by the United States. When the United States sold the parcel to plaintiff 39 years later,defendant notified plaintiff that it was discontinuing sewer service. In response, plaintiffcommenced this action seeking specific performance of the covenant in the deed from the UnitedStates to defendant and a permanent injunction prohibiting defendant from terminating sewerservice. Plaintiff also moved, by order to show cause, for a preliminary injunction preventingdefendant from terminating sewer service and obtained a temporary restraining order to thateffect. Supreme Court denied the motion, but stayed the execution of the order for 120 days.Plaintiff appeals.[FN*][*2]
To establish entitlement to a preliminary injunction,plaintiff was required to demonstrate a likelihood of success on the merits, irreparable harm ifthe injunction is not granted and that the balance of the equities is in its favor (see Nobu Next Door, LLC v Fine ArtsHous., Inc., 4 NY3d 839, 840 [2005]; see also CPLR 6301). Here, SupremeCourt did not abuse its discretion in determining that plaintiff failed to meet this "particularlyhigh" burden (Council of City of N. Y. v Giuliani, 248 AD2d 1, 4 [1998], appealdismissed and lv denied 92 NY2d 938 [1998]) inasmuch as plaintiff did not establish that itwas likely to be successful on its claim that the covenant to provide sewer service contained inthe deed from the United States to defendant runs with the land. Such affirmative covenants aredeemed to run with the land only where it is demonstrated that the original grantee and grantorintended such result, that there is privity of estate between the burdened party and the partyseeking the benefit of the covenant, and that the covenant touches and concerns the land (seeEagle Enters. v Gross, 39 NY2d 505, 508 [1976]). The deed at issue here specifically statesthat defendant's obligation to provide sewer service was "for the benefit of the [United States] atrates mutually agreeable to the [United States] and [defendant]." Inasmuch as this languagestrongly suggests that the parties to that deed did not intend for defendant's obligation to benefita subsequent grantee such as plaintiff, it cannot be said that plaintiff established likely successon this claim. Nor did plaintiff establish a probability of success on its claim of an impliedeasement from preexisting use in that it did not provide any evidence that the use of defendant'ssewer line is a reasonable necessity rather than a "mere convenience" (Sadowski v Taylor, 56 AD3d 991,993 [2008]).
Finally, we are not convinced that plaintiff will suffer irreparable harm if defendantterminates sewer service to plaintiff's parcel or that plaintiff cannot be compensated monetarilyfor any such harm should it ultimately prevail in this litigation. Moreover, there is unrefutedevidence in the record that defendant gave notice to all potential purchasers of the parcel,including plaintiff, that it would terminate sewer service upon the sale of the parcel by theUnited States. Despite this knowledge, plaintiff purchased the vacant parcel and entered intoresidential leases with several tenants. Considering that plaintiff's alleged harm appears to be inpart self-created, it cannot be said that the balance of equities tilts in plaintiff's favor.
Mercure, J.P., Rose, Stein and Garry, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote *: This Court granted plaintiff'sapplication to extend the stay of Supreme Court's order until the resolution of this appeal.