| Town of N. Elba v Grimditch |
| 2012 NY Slip Op 05208 [96 AD3d 1300] |
| June 28, 2012 |
| Appellate Division, Third Department |
| Town of North Elba et al., Appellants, v William H. Grimditch Jr.et al., Respondents. |
—[*1] James M. Brooks, Lake Placid, for respondents. Cynthia Feathers, Glens Falls, for Shore Owners' Association of Lake Placid, amicuscuriae.
Rose, J.P. Appeals (1) from an order of the Supreme Court (Meyer, J.), entered September29, 2010 in Essex County, which, among other things, partially granted plaintiffs' motion for apreliminary injunction, and (2) from an order of said court, entered March 11, 2011, which,among other things, granted defendants' motion to vacate said order.
The underlying facts are more fully set forth in our decision in Town of N. Elba vGrimditch (96 AD3d 1305 [2012] [decided herewith]). As relevant here, plaintiffs moved fora preliminary injunction preventing defendant William H. Grimditch Jr. from constructing aboathouse in the waters of Lake Placid adjacent to his lakefront property. The parties agreed thatthe injunction would also apply to a second boathouse being constructed adjacent to a nearbylakefront parcel owned by Grimditch's children, defendants Wayne H. Grimditch and Carol LynnGrimditch Roda. Supreme Court issued a limited preliminary injunction which, among otherthings, directed defendants to apply for building permits and to comply with the applicableVillage of Lake Placid/Town of North Elba Land Use Code. [*2]Plaintiffs appeal from the preliminary injunction, arguing that thecourt had no authority to impose certain conditions on the process for reviewing defendants'applications. While that appeal was pending, Supreme Court vacated the preliminary injunction,and plaintiffs appeal from that order as well.
Initially, we address defendants' contention that the appeal from the preliminary injunction ismoot by virtue of the subsequent order vacating the injunction. Plaintiffs' challenge to the vacaturorder is limited to whether Supreme Court was authorized to issue it. Generally, an issuing courtretains the power to entertain and decide motions on an order that has been appealed even wherethe outcome may impact the pending appeal (see Matter of Rospigliosi v Abbate, 31 AD3d 648, 650 [2006];see generally CPLR 2221, 5015). Here, plaintiffs claim that the vacatur was improperbecause it was sua sponte (see Matter ofZachary EE. [Misty DD.], 71 AD3d 1239, 1240 [2010]). The record, however, revealsthat Supreme Court vacated the preliminary injunction pursuant to defendants' specific request.As the preliminary injunction is no longer in effect, and as plaintiffs do not challenge the meritsof the determination to grant vacatur, the appeal from the preliminary injunction must bedismissed (see Matter of Martin vRolley, 22 AD3d 998 [2005]; Ireland v Wilenzik, 296 AD2d 771, 773-774[2002]; Matter of Century Concrete Corp. v Zoning Bd. of Appeals of Town ofSaugerties, 248 AD2d 787, 788 [1998]; cf. Scally v Scally, 151 AD2d 869, 871[1989]).
Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the appeal from the orderentered September 29, 2010 is dismissed, without costs. Ordered that the order entered March 11,2011 is affirmed, without costs.