| Town of Brookhaven v MMCCAS Holdings, Inc. |
| 2016 NY Slip Op 02351 [137 AD3d 1258] |
| March 30, 2016 |
| Appellate Division, Second Department |
[*1]
| Town of Brookhaven, Appellant, v MMCCASHoldings, Inc., et al., Respondents, et al., Defendants. |
Rosenberg Calica & Birney, LLP, Garden City, NY (Robert M. Calica andGeorge B. Kordas of counsel), for appellant.
Welby, Brady & Greenblatt, LLP, White Plains, NY (Alan D. Singer ofcounsel), for respondents.
In an action, inter alia, to permanently enjoin the defendants' use of certain realproperty for the composting and processing of mulch, the plaintiff appeals from an orderof the Supreme Court, Suffolk County (Pitts, J.), dated August 11, 2014, which denied itsmotion for a preliminary injunction.
Ordered that the order is affirmed, with costs, and the trial in this matter shall be heldforthwith.
The defendant MMCCAS Holdings, Inc. (hereinafter MMCCAS), is the owner ofthree contiguous parcels of real property located in the Town of Brookhaven. A smallportion of the property is situated within a J-2 Business Zoning District, while theremainder is situated in an A-1 Residential Zoning District. The property is used for acomposting and mulch-processing operation.
The Town of Brookhaven commenced this action, inter alia, to permanently enjointhe defendants from conducting the composting and mulch-processing operation on theproperty. The Town then moved for a preliminary injunction to that effect, contending,inter alia, that this use was unlawful under the zoning ordinance. In opposition,MMCCAS and the defendants Jetson Enterprises, Inc., and Green Vision Materials, Inc.(hereinafter collectively the defendants), argued that their operation constituted a lawfulnonconforming, preexisting use of the subject premises. The Supreme Court denied themotion. We affirm, albeit on a ground different than that relied upon by the SupremeCourt.
Initially, under the circumstances of this case, it was improper for the Supreme Courtto deny the Town's motion on the ground, in effect, that the Town was collaterallyestopped from seeking a preliminary injunction by the denial of a motion for that relief ina prior, related action. The defendants, in opposition to the Town's current motion, didnot make that argument or include the prior order and motion papers as exhibits to theiropposition papers (seeRosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d 45,52 [2014]; Baron v Brown,101 AD3d 915, 916-917 [2012]; Quizhpe v Luvin Constr., 70 AD3d 912, 914 [2010]; cf. Tirado v Miller, 75 AD3d153 [2010]). However, because the merits of the motion were argued before theSupreme Court and fully briefed in this Court, this [*2]Court will consider the merits of the motion in the interestof judicial economy (see T-RexHyde Park Owner, LLC v Dutchess County Legislature, 134 AD3d 1024[2015]; Curanovic vCordone, 134 AD3d 978 [2015]).
"To obtain preliminary injunctive relief based on a violation of its 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 that theequities are balanced in its favor' " (Town of Islip v Modica Assoc. of NY 122, LLC, 45 AD3d574, 575 [2007], quoting First Franklin Sq. Assoc., LLC v Franklin Sq. Prop. Account,15 AD3d 529, 533 [2005]; see Town of Carmel v Melchner, 105 AD3d 82, 91 [2013];Town of Oyster Bay vBaker, 96 AD3d 824 [2012]).
Here, although the Town ultimately may be successful in this action, it failed todemonstrate that the balance of the equities weighed in its favor. While the harm to thedefendants if the injunction is granted would prove substantially burdensome and likelyirreversible, the harm to the Town should the injunction be denied is more remote anduncertain (see generallyLombard v Station Sq. Inn Apts. Corp., 94 AD3d 717, 721-722 [2012];Klein, Wagner & Morris v Lawrence A. Klein, P.C., 186 AD2d 631, 633[1992]). Indeed, the Town's evidence suggests that the defendants have been conductingsubstantial composting and mulch-processing activities on the property since at least2007. Further, granting the injunction would disturb the status quo, rather than maintainit (see Board of Mgrs. of theBritton Condominium v C.H.P.Y. Realty Assoc., 101 AD3d 917, 919 [2012]; cf. Masjid Usman, Inc. v Beech140, LLC, 68 AD3d 942, 943 [2009]; Village of Croton-on-Hudson v Northeast Interchange Ry.,LLC, 46 AD3d 546, 548 [2007]). Under these circumstances, the Town's motionfor a preliminary injunction should have been denied on the merits (see Board ofMgrs. of the Britton Condominium v C.H.P.Y. Realty Assoc., 101 AD3d at 919; Behar v Quaker Ridge Golf Club,Inc., 95 AD3d 808, 809 [2012]; cf. Town of Riverhead v Gezari, 63 AD3d 1042,1043-1044 [2009]). Mastro, J.P., Chambers, Roman and Barros, JJ., concur.