| Arcamone-Makinano v Britton Prop., Inc. |
| 2011 NY Slip Op 02818 [83 AD3d 623] |
| April 5, 2011 |
| Appellate Division, Second Department |
| Amelia Arcamone-Makinano et al., Respondents, v BrittonProperty, Inc., et al., Appellants. |
—[*1] Steven R. Sutton, New York, N.Y., for respondents.
In an action, inter alia, to permanently enjoin the defendants from trespassing on theplaintiffs' property and to direct the defendants to remove certain encroachments, the defendantsappeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County(Brathwaite Nelson, J.), dated August 13, 2010, as granted those branches of the plaintiffs'motion which were to preliminarily enjoin the defendants from "trespassing, fencing, orotherwise engaging in any acts on the plaintiffs' property" and directed them to remove thefencing erected on the plaintiffs' property.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiffs and the defendants are the owners of adjacent properties located on BrittonAvenue in Elmhurst, Queens. The plaintiffs' property is improved with a residence where theycurrently live. Beginning in or around the Spring of 2008, the defendants began construction of asix-story structure on their property. During the construction, the defendants installedapproximately 20 to 30 underpinnings, referred to by the parties as "I-Beams," which encroachapproximately 11 inches onto the plaintiffs' property and 18 feet below the ground. In December2009, the plaintiffs commenced this action, inter alia, to permanently enjoin the defendants fromtrespassing on the plaintiffs' property and to direct the defendants to remove the encroachments.Thereafter, the plaintiffs moved, inter alia, for a preliminary injunction. In the order appealedfrom, the Supreme Court granted those branches of the plaintiffs' motion which were topreliminarily enjoin the defendants from "trespassing, fencing, or otherwise engaging in any actson the plaintiffs' property," and directed the defendants to remove the fencing they erected on theplaintiffs' property. The Supreme Court also directed, pursuant to CPLR 6312 (b), that theplaintiffs post a $20,000 undertaking. The defendants appeal. We affirm the order insofar asappealed from.
To obtain a preliminary injunction, a movant must establish (1) a likelihood of success on themerits, (2) irreparable injury absent a preliminary injunction, and (3) a balancing of the equitiesin the movant's favor (see CPLR 6312 [c]; Rowland v Dushin, 82 AD3d 738 [2d Dept 2011]; S.J.J.K. Tennis, Inc. v Confer Bethpage,LLC, 81 AD3d 629 [2011]; Volunteer [*2]Fire Assn. of Tappan, Inc. vCounty of Rockland, 60 AD3d 666, 667 [2009]). "The purpose of a preliminaryinjunction is to preserve the status quo until a decision is reached on the merits" (Icy Splash Food & Beverage, Inc. vHenckel, 14 AD3d 595, 596 [2005]). The decision to grant or deny a preliminaryinjunction lies within the sound discretion of the Supreme Court (see Trump on the Ocean, LLC v Ash,81 AD3d 713 [2011]). The mere existence of an issue of fact will not itself be grounds forthe denial of the motion (see Stockley vGorelik, 24 AD3d 535, 536 [2005]).
Here, the Supreme Court providently exercised its discretion in granting the subject branchesof the plaintiffs' motion. The plaintiffs demonstrated a likelihood of success on the merits of theirtrespass cause of action (see Poughkeepsie Gas Co. v Citizens' Gas Co., 89 NY 493[1882]; Long Is. Gynecological Servs. v Murphy, 298 AD2d 504 [2002]; seegenerally Stockley v Gorelik, 24 AD3d at 536), as well as the prospect of irreparable injury ifthe preliminary injunction is withheld (see Omakaze Sushi Rest., Inc. v Ngan Kam Lee, 57 AD3d 497[2008]; Sforza v Nesconset Fire Dist., 184 AD2d 631, 632 [1992]). Furthermore, thebalance of the equities tipped in the plaintiffs' favor.
The defendants' remaining contentions either are without merit or have been renderedacademic by our determination. Prudenti, P.J., Dillon, Balkin and Sgroi, JJ., concur.