| Town of Oyster Bay v Baker |
| 2012 NY Slip Op 04733 [96 AD3d 824] |
| June 13, 2012 |
| Appellate Division, Second Department |
| Town of Oyster Bay, Appellant, v John C. Baker,Respondent. |
—[*1] Hutchinson & Hutchinson, P.C., Oyster Bay, N.Y. (Richard L. Hutchinson of counsel), forrespondent.
In an action, inter alia, for permanent injunctive relief, the plaintiff appeals, as limited by itsbrief, from so much of an order of the Supreme Court, Nassau County (Jaeger, J.), dated May 25,2011, as denied that branch of its motion which was to preliminarily enjoin the defendant fromusing certain real property in connection with the defendant's landscaping business.
Ordered that the order is affirmed insofar as appealed from, with costs.
To obtain preliminary injunctive relief based on a violation of its zoning ordinances, a townneed not satisfy the traditional three-part test for injunctive relief, but is required "only [to] showthat it has a likelihood of ultimate success on the merits and that the equities are balanced in itsfavor" (First Franklin Sq. Assoc., LLC vFranklin Sq. Prop. Account, 15 AD3d 529, 533 [2005]; see Town of Southampton v County ofSuffolk, 88 AD3d 988, 989 [2011]; Town of Huntington v Pierce Arrow RealtyCorp., 216 AD2d 287, 288 [1995]; Incorporated Vil. of Freeport v Jefferson IndoorMar., 162 AD2d 434, 436 [1990]). To obtain relief, a town must "come forward with astrong prima facie showing that the defendants are violating its zoning ordinance" (Town ofOyster Bay v Sodomsky, 154 AD2d 455, 455 [1989]; see Town of Oyster Bay vDyott, 246 AD2d 531 [1998]). Here, the Town of Oyster Bay failed to make a prima facieshowing that the nonconforming use of the subject property had been abandoned and, thus, thatthe use of the subject property as a landscaping business was not a lawful, preexistingnonconforming use. Consequently, the Supreme Court correctly denied that branch the Town'smotion which was to preliminarily enjoin the defendant from using his real property inconnection with his landscaping business (see Town of Islip v Modica Assoc. of NY 122, LLC, 45 AD3d 574,575 [2007]; Town of Southampton v Sendlewski, 156 AD2d 669, 670 [1989]; Townof Oyster Bay v Sodomsky, 154 AD2d 455 [1989]; CPLR 4401).
The Town's remaining contentions are without merit.
Dillon, J.P., Eng, Austin and Sgroi, JJ., concur. [Prior Case History: 2011 NY Slip Op 31448(U).]
[As amended, see 2012 NY Slip Op 86872(U).]