| 91-54 Gold Rd., LLC v Cross-Deegan Realty Corp. |
| 2012 NY Slip Op 01661 [93 AD3d 649] |
| March 6, 2012 |
| Appellate Division, Second Department |
| 91-54 Gold Road, LLC, et al.,Respondents, v Cross-Deegan Realty Corp., Defendant, and Howard Beach Car WashCorporation, Appellant. |
—[*1] Addabbo & Greenberg, Forest Hills, N.Y. (Alan T. Rothbard of counsel), forrespondents.
In an action, inter alia, for a permanent injunction enjoining the defendants from interferingwith an alleged easement over certain real property, the defendant Howard Beach Car WashCorporation appeals, as limited by its brief, from so much of an order of the Supreme Court,Queens County (Elliot, J.), entered November 23, 2010, as granted that branch of the plaintiffs'motion which was for a preliminary injunction enjoining that defendant from interfering with thealleged easement, and fixed an undertaking pursuant to CPLR 6312 (b) in the sum of only$40,000.
Ordered that the order is affirmed insofar as appealed from, with costs.
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 (seeArcamone-Makinano v Britton Prop., Inc., 83 AD3d 623, 624 [2011]; Rowland v Dushin, 82 AD3d 738,739 [2011]). The decision to grant or deny a preliminary injunction lies within the sounddiscretion of the Supreme Court (seeReichman v Reichman, 88 AD3d 680, 681 [2011]; Arcamone-Makinano v BrittonProp., Inc., 83 AD3d at 625). " 'The mere existence of an issue of fact will not itself begrounds for the denial of the motion' " (Reichman v Reichman, 88 AD3d at 681, quotingArcamone-Makinano v Britton Prop., Inc., 83 AD3d at 625).
Here, the plaintiffs demonstrated a likelihood of success on their cause of action alleging thecreation of an easement by prescription (see Vitiello v Merwin, 87 AD3d 632, 633 [2011]; Almeida v Wells, 74 AD3d 1256,1259 [2010]). The plaintiffs also demonstrated the prospect of irreparable injury absent apreliminary injunction, and that a balance of the equities tipped in their favor. Accordingly, theSupreme Court providently exercised its discretion in granting that branch of the plaintiffs'motion which was for a preliminary injunction enjoining the appellant from interfering with thealleged easement.
CPLR 6312 (b) directs the court to fix an undertaking in an amount that will compensate thedefendant for damages incurred by reason of an injunction in the event it is determined that theplaintiff was not entitled to the injunction (see 84-85 Gardens Owners Corp. v 84-12 35th Ave. Apt. Corp., 91AD3d 702, 703 [2012]; Ujueta vEuro-Quest Corp., 29 AD3d 895, 896 [2006]). The Supreme [*2]Court providently exercised its discretion in directing the plaintiffsto post an undertaking in the sum of only $40,000, as this amount was rationally related to theamount of potential damages that the appellant established that it might sustain by virtue of thepreliminary injunction if it were later determined that the plaintiff was not entitled to thepreliminary injunction (see 84-85 Gardens Owners Corp. v 84-12 35th Ave. Apt. Corp.,91 AD3d at 703; Ujueta v Euro-Quest Corp., 29 AD3d at 896). Dillon, J.P., Florio,Chambers and Lott, JJ., concur.