| Town of Southampton v County of Suffolk |
| 2011 NY Slip Op 07629 [88 AD3d 988] |
| October 25, 2011 |
| Appellate Division, Second Department |
| Town of Southampton, Respondent, v County of Suffolk etal., Appellants, et al., Defendants. |
—[*1] Tiffany Scarlato, Town Attorney, Southampton, N.Y. (Michael Sendlenski of counsel), forrespondent.
In an action to permanently enjoin the defendants from continuing and/or expanding their useof certain trailers within the Town of Southampton as temporary housing for registered sexoffenders, the defendants County of Suffolk and Janet DeMarzo, as Commissioner of SocialServices for the County of Suffolk, appeal, as limited by their brief, from so much of an order ofthe Supreme Court, Suffolk County (Whelan, J.), dated June 8, 2010, as granted that branch ofthe plaintiff's motion which was for a preliminary injunction.
Ordered that the order is reversed insofar as appealed from, on the facts and in the exercise ofdiscretion, with costs, and that branch of the plaintiff's motion which was for a preliminaryinjunction is denied.
In February 2007 the County of Suffolk and the Commissioner of Social Services for theCounty of Suffolk (hereinafter together the County) placed a trailer on a county-owned parcel ofreal property located in Westhampton to provide temporary emergency housing for homelessregistered sex offenders. This trailer (hereinafter the Westhampton trailer) provided housing forup to eight sex offenders. In May 2007 the County set up a second trailer to serve the samepurpose on another county-owned parcel located in Riverside (hereinafter the Riverside trailer).In 2008 the Riverside trailer was expanded to house additional sex offenders.
In May 2009 the Town of Southampton commenced this action to permanently enjoin theCounty from continuing and/or expanding its use of the Riverside trailer. The Town alleged,among other things, that the County's installation of the Riverside trailer and its use as housingviolated certain state, county, and local laws, including certain zoning provisions. In May 2010the Town served a proposed amended complaint upon the County seeking such permanentinjunctive relief with respect to both the Westhampton trailer and the Riverside trailer.Simultaneously, the Town moved, inter alia, for a preliminary injunction enjoining the Countyfrom altering, expanding, replacing, or changing the physical structure of the Riverside andWesthampton trailers. In an order dated June 8, 2010, the Supreme Court, among other things,granted that branch of the Town's motion which was for a preliminary injunction.[*2]
To obtain a preliminary injunction based on a violation ofits zoning ordinances, a town need not satisfy the traditional three-part test for injunctive relief,but is required " 'only [to] show that it has a likelihood of ultimate success on the merits and thatthe equities are balanced in its favor' " (Town of Islip v Modica Assoc. of NY 122, LLC, 45 AD3d 574,575 [2007], quoting First Franklin Sq.Assoc., LLC v Franklin Sq. Prop. Account, 15 AD3d 529, 533 [2005]; see TownLaw § 268 [2]). Here, the Town failed to establish a likelihood of ultimate success on themerits (see Town of Riverhead v Countyof Suffolk, 78 AD3d 1165 [2010]; Town of Islip v Modica Assoc. of NY 122,LLC, 45 AD3d at 575; Town of Oyster Bay v Sodomsky, 154 AD2d 455 [1989]).The Town further failed to demonstrate that the equities were balanced in its favor (see Town of Riverhead v County ofSuffolk, 39 AD3d 537, 539 [2007]; Town of Esopus v Fausto Simoes & Assoc.,145 AD2d 840, 842 [1988]). Consequently, the Supreme Court improvidently exercised itsdiscretion in granting that branch of the Town's motion which was for a preliminary injunction(see Town of Huntington v Pierce Arrow Realty Corp., 216 AD2d 287, 289 [1995]).
To the extent that the County seeks relief regarding its separate motion to dismiss thecomplaint, we note that the Supreme Court did not decide that motion in the order appealedfrom. Thus, the County's contentions regarding that separate motion are not properly before thisCourt. Skelos, J.P., Chambers, Sgroi and Miller, JJ., concur.