Opinion
June 26, 1986
Appeal from the Supreme Court, Nassau County (Brucia, J.).
Appeal from the order dated May 23, 1986 dismissed. An order directing a judicial hearing to aid in the disposition of a motion is not appealable as of right (see, Bettino v. Bettino, 112 A.D.2d 181; Liebling v. Yankwitt, 109 A.D.2d 780; Bagdy v Progresso Foods Corp., 86 A.D.2d 589).
Order dated May 28, 1986, affirmed.
The defendant Winepol Son Building Corp. is awarded one bill of costs.
The temporary restraining order granted by this court on June 16, 1986, and extended by the order of this court, dated June 18, 1986, is hereby vacated.
The plaintiff's contention that his motion for a preliminary injunction was erroneously denied is without merit. In order to establish his entitlement to such relief, the plaintiff was required to demonstrate (1) a likelihood of ultimate success on the merits, (2) irreparable injury absent a granting of the injunction, and (3) a balancing of the equities in his favor (see, Matter of Brenner v. Hart Sys., 114 A.D.2d 363; Buegler v Walsh, 111 A.D.2d 206; Family Affair Haircutters v. Detling, 110 A.D.2d 745). As to the first of these requirements, the plaintiff failed to establish a likelihood of success on the merits of his claim that he had adversely possessed a portion of the real property which was conveyed by deed to the defendant Winepol Son Building Corp. (hereinafter Winepol). While the plaintiff was required to show that he had actually possessed the disputed property for a continuous period of 10 years (see, CPLR 212 [a]), the testimony adduced at the hearing on the motion for a preliminary injunction merely established that he had cultivated and maintained the parcel for one year and that his gardener had done likewise for the next six or seven years. Nor did the evidence adduced by the plaintiff to support his "tacking" argument, which was deficient in several respects, suffice to demonstrate a likelihood of success on the merits.
In addition, the construction of a house foundation by the defendant Winepol near the disputed parcel has apparently rendered the plaintiff's "irreparable harm" argument academic. Thus, a preliminary injunction is inappropriate under the circumstances of this case.
In light of the foregoing, we need not consider the plaintiff's additional contentions. Mangano, J.P., Thompson, Lawrence and Spatt, JJ., concur.