Opinion
26493/2007.
Decided April 14, 2008.
JOHN J. LEO, ESQ., HUNTINGTON TOWN ATTORNEY, BY: ELLEN SCHAFFER, ESQ. ASSISTANT TOWN ATTORNEY, HUNTINGTON, NEW YORK, PLAINTIFFS' ATTORNEYS.
AMERICAN CHOPHOUSE, ENTERPRISES, LLC: GREENBERG TRAURIG, LLP, BY: JAMES W. PERKINS, ESQ., METLIFE BUILDING, NEW YORK, NEW YORK, DEFENDANT PORT DOCK AND STONE CORP.:, HUNTINGTON, NEW YORK, ATTORNEYS FOR DEFENDANT.
ORDERED that this motion by plaintiffs TOWN OF HUNTINGTON and HUNTINGTON SEWER DISTRICT ("Town") for an Order, pursuant to Article 63 of the CPLR, enjoining and restrainingthe defendants, theirservants, heirs, agents, assigns, employees, contractees, tenants and any and all persons or business entities acting on their behalf or taking title or having possession of the subject premises, from:
(A)Providing food, beverages, and bar service on the outdoor deck and terrace of approximately 287 feet wide by 50 feet deep in the rear of the property located at 117 New York Avenue, Huntington, New York and identified by Suffolk County Tax Map Number 0400-31-1-004 and 005 (the "premises");
(B)Conducting and operating restaurant and/or bar on the outdoor deck and terrace of approximately 287 feet wide by 50 feet deep in the rear of the premises;
(C)Using the outdoor deck and terrace of approximately 287 feet wide by 50 feet deep and in the rear of the premises as a bar, restaurant, cafÉ, or for any restaurant, bar or cafÉ-related activities;
(D)Providing food, beverages, and bar service at bar(s) covered by tent, canopy and/or awning in the rear of the premises;
(E)Using, maintaining and operating a tent, canopy and/or awning in the rear of the premises;
(F)Using, maintaining and operating bar(s) covered by tent, canopy and/or awning in the rear of the premises as a bar, restaurant, cafÉ, or for any restaurant, bar or cafÉ-related activities;
(G)Using, maintaining and operating a cabana structure with a bar and two bathrooms in the rear of the premises;
(H)Providing food, beverages, and bar service at a cabana structure with a bar andtwo bathrooms in the rear of the premises;
(I)Using, maintaining and operating a cabana structure with a bar and two bathrooms in the rear of the premises as a bar, restaurant, cafÉ, or for any restaurant, bar or cafÉ-related activities; and
(J)Using, maintaining and operating a walk-in freezer, in the rear or side of the premises, is hereby DENIED for the reasons set forth hereinafter; and it is further
ORDERED that this cross-motion by defendant AMERICAN CHOPHOUSE ENTERPRISES, LLC, s/h/a AMERICAN CHOPHOUSE ENTERPRISES, LLC a/k/a PRIME RESTAURANT ("American") for an Order, pursuant to CPLR 3211(a)(7), dismissing the Town's verified complaint in its entirety, or alternatively, for an Order, pursuant to CPLR 2512(1), fixing the amount of damages for which plaintiff shall be liable pursuant to CPLR 6312(b), is hereby DENIED for the reasons set forth hereinafter. The Court notes that the Town has not interposed opposition to American's cross-motion.
The Town commenced this action by order to show cause and summons and verified complaint seeking, among other things, a permanent injunction enjoining American from utilizing its outside deck and terrace located at the rear of the premises as a restaurant and/or bar. The Town alleges that American failed to obtain the necessary inspections from the Fire Marshall, Building Inspector, Engineering Inspector, and Plumbing Inspector, and failed to obtain building permits, site plan approval, and a certificate of occupancy, in violation of the Huntington Town Code; and failed to provide handicap parking spaces in violation of the Huntington Uniform Traffic Code. The Town alleges that the foregoing constitutes a threat and risk to the health, safety, and welfare of the public.
By Order dated September 12, 2007, and redated October 25, 2007 (Spinner, J.), the Court granted a temporary restraining order pending the return date of the instant application, directing that the defendants, their servants, heirs, agents, assigns, employees, contractees, tenants and any and all persons or business entities acting on their behalf be restrained, enjoined and prohibited from:
(A)Providing food, beverages, and bar service at bar(s) covered by tent, canopy and/or awning in the rear of the premises except for items brought from within the restaurant only for consumption at tables only at the premises;
(B)Using, maintaining and operating bar(s) covered by tent, canopy and/or awning and/or the fire pit in the rear of the premises as a bar, restaurant, cafÉ, or for any restaurant, bar or cafÉ-related activities;
(C)Using, maintaining and operating a cabana structure with a bar and two bathrooms in the rear of the premises;
(D)Providing food, beverages, and bar service ata cabana structure with a bar andtwo bathrooms in the rear of the premises;
(E)Using, maintaining and operating a cabana structure with a bar and two bathrooms in the rear of the premises as a bar, restaurant, cafÉ, or for any restaurant, bar or cafÉ-related activities; and
(F)Using, maintaining and operating a walk-in freezer, in the rear or side of the premises unless actions were forthwith taken to secure the same.
The temporary restraining order further provided:
(G)The defendants, their servants, heirs, agents, assigns, employees, contractees, tenants and any and all persons or business entities acting on their behalf or taking title or having possession of the subject premises, were Ordered and directed, pending the return date herein, to board-up, cordon off or otherwise block entry and access to the bars under a canvas/tent awning, a cabana structure with a bar and two bathrooms, the fire pit and a walk-in freezer, except as hereinabove directed, located at the rear or side of the premises unless and until all necessary inspections are completed by the Fire Marshall, Building Inspector and Plumbing Inspector; all necessary building permits have been issued; all required site plans approved by the Planning Board and Zoning Board of Appeals; all necessary approvals obtained from Suffolk County Health Department; and the required Certificate of Occupancy has been issued by the Town of Huntington; and
(H)For an Order retaining jurisdiction over the defendants, their servants, heirs, agents, assigns, employees, contractees, tenants and any and all persons or business entities acting on their behalf or taking title or having possession of the subject premises, for the purpose of enforcing the injunction and any judgment or order of the Court relating to such violations.
By Stipulation dated September 13, 2007, the parties agreed to adjourn the return date of the instant motion from September 26, 2007 to October 24, 2007, and further agreed that "the temporary restraining order issued in the Order to Show Cause entered September 12, 2006 (sic) shall remain in force and effect as provided in such Order." The motion was ultimately submitted to this Court on November 15, 2007.
By Order of even date, this Court has determined: (1) a petition by American filed pursuant to Article 78 of the CPLR; (2) a motion by the Town to dismiss the petition; (3) and a motion by American to compel the Town to issue a building permit for the outdoor deck and process two other building permit applications filed with the Town in connection with American's cabana and walk-in freezer, in a related proceeding entitled American Chophouse Enterprises, LLC v. The Town of Huntington, Planning Board of the Town of Huntington, Paul Mandelik, Jane Devine, Mitchell Sommer, Avrum Rosen, Lorraine Santoianni, Steven Schnittman and Lynn Healy each as Members of the Planning Board of the Town of Huntington, under index number 18049/2007.
American is a limited liability company whose sole asset is a leasehold in the premises commonly known as 117 New York Avenue, Huntington, which is improved with a restaurant, and 110 New York Avenue, Huntington, which contains a parking lot that services the restaurant. The managing members of American are JOHN BOHLSEN and MICHAEL BOHLSEN. The fee owner of the subject real property is co-defendant PORT DOCK AND STONE CORP. ("PDSC"). The zoning for the property is C-9 Harbor District and R-80 Residential District. American leases the premises from PDSC pursuant to a forty-year lease dated May 1, 2005, and operates a restaurant thereupon known as "Prime Restaurant." Prior thereto, PDSC operated a restaurant and nightclub on the premises known as "CoCo's Water CafÉ" for nearly twenty years. American informs the Court that PDSC's site plan for the premises was approved by the Town on or about March 12, 1991, which contemplated the construction and operation of a waterside restaurant with outdoor patio area. The premises are currently comprised of a main restaurant building, an outside deck and terrace in the rear of the property (waterside), and accessory structures used as bars, a cabana, bathrooms, and a walk-in freezer.
In support of the instant application for a preliminary injunction, the Town has submitted, among other things, affidavits of PATRICIA MULLER, Town Ordinance Inspector, PHILIP TEPE, Town Zoning/Building Inspector, and FELECIA ZARZICKI, Town Ordinance Inspector. The foregoing affidavits, which are based upon the personal knowledge of the affiants, describe various occasions in June, July and August of 2007 where the affiants observed "dozens of individuals" being served food and liquor on the bi-level outside deck and at an outside bar located under a tent structure at the rear of American's restaurant premises, for which no inspections, permits, or certificates of occupancy have been issued, constituting a threat and risk to the health, safety, and welfare of the public. The affidavits of Ms. Muller and Mr. Tepe describe an outside bar/cabana with restrooms in operation on the outside deck. In addition, the affidavit of Ms. Zarzicki indicates that American failed to paint and/or install lines, markings and signs to designate parking spaces and access areas for use by handicap persons, in violation of the Huntington Uniform Traffic Code. As a result of the affiants' observations, the Town issued numerous summons to American for violations of the Town Code which were returnable in the Third District Court of Suffolk County.
The Town alleges that a preliminary injunction is necessary to restore public safety pending the resolution of this matter. The Town argues that there is a strong likelihood of success on the merits, as the Town can "easily" prove that defendants committed the illegal conduct complained of. Moreover, the Town contends that a municipality does not need to satisfy the customary three-prong test to be entitled to a preliminary injunction; it is not required to show irreparable injury. Notwithstanding the foregoing, the Town argues that the provision of food and beverages on the outside deck without the requisite permits poses a serious risk of injury and possibly loss of life and property should a construction defect exist or fire occur.
In response, American has filed a notice of cross-motion, dated October 17, 2007, in opposition to the Town's application for a preliminary injunction and to dismiss the Town's complaint pursuant to CPLR 3211(a)(7), failure to state a cause of action. Thereafter, American filed a notice of cross-motion, dated November 5, 2007, seeking to dismiss upon the same grounds, in addition to alternative relief, pursuant to CPLR 2512(1), of fixing the amount for which plaintiffs shall be liable pursuant to CPLR 6312(b). In support of the cross-motion, American has submitted, among other things, an affidavit of MICHAEL BOHLSEN, a managing member of American; an affidavit of JOHN BOHLSEN, a member of American; an affidavit of RAYMOND M. CALAMARI, an architect and president of Arcalhek Architects P.C. ("Arcalhek"), the architect of record for the construction project at the premises; an affidavit of SEAN MURRAY, vice president of J.T. Magen Co., Inc. ("JTM"), American's construction manager for the project; an affidavit of ORESTE ALBICOCCO, the president and owner of PDSC; and an affirmation of American's counsel.
The affidavit of MICHAEL BOHLSEN, a managing member of American, sets forth the factual history of this matter in detail. Mr. Bohlsen informs the Court that in connection with the construction and operation of the prior restaurant, "CoCo's," the Town issued building permits, and certificates of occupancy and/or completion for the main building and outdoor structures, including two outdoor bars and a walk-in cooler. Mr. Bohlsen further informs the Court that on or about May 3, 2005, the Town issued building permit number PO-50966A in connection with American's proposed renovations to the existing restaurant and outdoor patio. American thereafter hired architects, a construction manager, an attorney, and other consultants in connection with the renovations. Mr. Bohlsen alleges that American spent approximately $10 million to perform the renovations.
Mr. Bohlsen alleges that after the building permit issued, he learned from Town officials of their intent to develop, at some future time, a promenade or public access walkway along the perimeter of Huntington Harbor, inclusive of the water frontage of Prime Restaurant. Mr. Bohlsen further alleges that in an effort to accommodate the Town, American agreed to provide a strip of land approximately eight feet in width along the waterfront running the length of the parcel in roughly a north-south direction, but only at such time when the Town actually constructs and opens the promenade around Huntington Harbor. However, Mr. Bohlsen alerts the Court that pursuant to paragraph sixty-seventh of the lease between American and PDSC, American is prohibited from "unreasonably encumber[ing] the Premises."
On or about January 19, 2006, the Town's Zoning Board of Appeals granted an application by American for a "minor" parking variance in connection with the premises, which authorized the construction of a 1763 sq. ft. accessory building. However, American alleges that it decided not to build the accessory building, but instead built a smaller cabana of 484 sq. ft. Mr. Bohlsen notes that American's offer concerning public access was incorporated into the ZBA's written decision.
Mr. Bohlsen alleges that in the Fall of 2006, the Town notified American that a raised patio/deck and cabana on the premises were not authorized pursuant to the aforementioned building permit and ZBA decision, and Mr. Bohlsen claims that the Town "threatened" to refuse to issue a certificate of occupancy for the main restaurant. Mr. Bohlsen submits that this position of the Town was surprising to him, as the building plans, including the outdoor construction, had been filed with the Town in 2005 and 2006, and Town inspectors had visited the site, observed the construction, and had issued approval certificates to JTM for the work as it progressed. Mr. Bohlsen contends that by the time the Town voiced its objection, approximately seventy-five (75%) percent of the work had been completed in the outdoor area.
In an attempt to resolve the matter, the parties entered into a Stipulation dated October 31, 2006 ("Stipulation"), which Mr. Bohlsen believed would govern the issuance of any remaining permits and certificates of occupancy. The Stipulation provided, among other things, that American would not use the raised patio/deck or cabana until such time as a certificate of occupancy was issued by the Town, and that American would "diligently" prepare and file a site plan application with the Planning Board. The parties agreed to a civil fine against American in the amount of $10,000.00 for the renovations made without an approved site plan, building permit, or certificate of occupancy.
The Stipulation also referenced the proposed waterfront promenade and/or walkway being considered by the Town. American agreed to provide, as lessee of the premises, an easement to the Town described as "a strip of land approximately [e]ight (8) feet in width, running the length of the parcel parallel to the existing bulkhead on the most westerly side of the premises, running in roughly a north-south direction . . . for free and unencumbered public pedestrian passage as part of a promenade (walkway) to be constructed, at such time as the TOWN is ready to construct and open the promenade for public use along the entire eastside of Huntington Harbor. No such public access will be allowed until the TOWN actually constructs and opens the east promenade around Huntington Harbor" (emphasis supplied).
Pursuant to the Stipulation, on or about January 11, 2007, American filed an amended site plan with the Planning Board which incorporated the patio/deck and cabana. Thereafter, on April 10, 2007, American made application to the Town for three separate building permits, to wit: an application for the porch/deck/patio bearing identification number 04-10-07-18; an application for the cabana bearing identification number 04-10-07-19; and an application for the walk-in freezer bearing identification number 04-10-07-20. American filed three separate applications so that each could be approved independently of the others.
By resolution dated April 25, 2007, the Planning Board conditionally approved American's amended site plan. Condition number 5 of the resolution provides in pertinent part that "[p]ursuant to the Zoning Board of Appeals decision and the Stipulation of Settlement, the applicant shall provide an easement or Right of Way or dedication of property approximately eight (8) feet in width along the entire waterfront area of the site plan. Including an eight (8) feet wide easement, right of way or dedication across the landscape area denoted along the northwest corner of the site plan."
Mr. Bohlsen alleges that the Planning Board, unilaterally and without notice to American, rescinded the resolution dated April 25, 2007, and passed a resolution dated May 9, 2007. The May 9, 2007 resolution also contained a "Condition 5" with respect to the two easements, but imposed more onerous terms on American with respect to the creation of the easements. In addition, Mr. Bohlsen alerts the Court that any reference to the Zoning Board of Appeals decision and the Stipulation was deleted from the May 9, 2007 resolution. Mr. Bohlsen argues that the Planning Board was trying to "cover up the Town's prior commitment," as the parties had agreed that: (1) the easement along the waterfront would be conveyed only when the Town had obtained the necessary access rights from other owners of neighboring properties, had implemented plans to construct the promenade, and had begun construction; and (2) only one easement was to be conveyed along the waterfront, not a second easement from New York Avenue across American's property to the water for public ingress and egress. Mr. Bohlsen informs the Court that American has complied with the other four conditions imposed by the May 9, 2007 resolution.
Mr. Bohlsen indicates that American met with Town officials on July 20, 2007 to discuss American's pending permits. Mr. Bohlsen alleges that at the conclusion of the meeting, the parties agreed that only four pieces of information were outstanding before the building permit could issue in connection with the porch/deck/patio: (1) submission to the Planning Department of a photocopy of the site plan application with the landlord's signature; (2) submission of drafting changes to the site plan; (3) submission of a designed screen cover for the outdoor fireplace; and (4) submission of a certification from an engineer as to the structural integrity of the awning over the outdoor patio. According to Mr. Bohlsen, all four items were submitted to the Town in August of 2007. Notably, and as discussed more fully below, American's architect was told by a representative of the Building Department that the Building Department had "signed-off" on the plans and the permits were ready to issue. Notwithstanding the foregoing, during a telephone conversation between American's attorney and an assistant town attorney on September 7, 2007, the Town identified five additional outstanding issues that needed to be resolved prior to the issuance of the permit for the porch/deck/patio. Mr. Bohlsen indicates the five remaining issues are as follows:
(A) The Town has claimed a Suffolk County Department of Health Services inspection of the sewer hook-up at the cabana is required. However, Mr. Bohlsen alleges that American was advised that as the property is located within plaintiff HUNTINGTON SEWER DISTRICT, County Health approvals for the bathrooms are not required;
(B) The Town has claimed that a Department of State variance is required. Mr. Bohlsen indicates that American has applied for such variance, and a hearing was scheduled for in or about November of 2007. The parties have not supplemented the record to inform the Court as to the outcome of this hearing;
(C) The Town has claimed that plans for the walk-in freezer are required. However, Mr. Bohlsen indicates that American did provide the Town plans for the walk-in freezer;
(D) The Town has claimed that plans for the canopy over the outdoor bar are required. However, Mr. Bohlsen indicates that detailed plans for the canopy were provided to the Town, including, as discussed hereinafter, canopy attachment detail and a canopy flap location plan, and no objection had ever been raised thereto; and
(E) The Town has claimed that an inspection of the fire pit is required. Mr. Bohlsen indicates that on August 23, 2007, Fire Marshal Logan inspected the fire pit and advised American's architect as to what was required to approve the plan. The architect prepared plans in conformance therewith, and Mr. Bohlsen was allegedly advised that the Building Department had "signed off" on the drawing. Mr. Bohlsen further alleges that the protective screening requested by the Town has been installed.
Notwithstanding the foregoing, the Town has not issued the remaining building permits and/or certificates of occupancy to date. Mr. Bohlsen argues that most of the outdoor improvements are substantially the same as those previously approved by the Town; much of the work in the outdoor areas was approved by the Town under the existing permit; and Town officials had inspected the area during construction. Finally, with respect to the handicap parking spaces, Mr. Bohlsen claims that he is unable to perform the required work absent the necessary permits, which the Town has refused to issue.
JOHN BOHLSEN, a member of American, indicates that the Town's delay and refusal to issue building permits, and the commencement of the instant action for injunctive relief, has caused harm to American's reputation, forced American to fire employees, and cost American significant lost revenue. Mr. Bohlsen alleges that as a result of the temporary restraining order, Prime has lost approximately $50,000.00 to $75,000.00 per week in revenue. Mr. Bohlsen further alleges that if a preliminary injunction is granted herein, Prime will lose an additional $50,000.00 to $75,000.00 per week, for total losses of approximately $100,000.00 to $150,000.00 per week, and American will be forced to fire an additional forty-two (42) employees. Moreover, Mr. Bohlsen claims that if the outdoor area is shut down, Prime would fall below its "break-even" point of approximately $150,000.00 per week, thereby jeopardizing the viability of the restaurant as a going concern. Mr. Bohlsen requests that in the event the Court grants injunctive relief, then it should fix the amount for which the Town shall be liable, in no less than "tens of millions of dollars."
American has also submitted an affidavit of RAYMOND M. CALAMARI, an architect and president of Arcalhek, the architect of record for the construction project at the premises. Mr. Calamari indicates that Arcalhek was retained by American on or about April 5, 2005 to be architect of record for the construction of a restaurant with both indoor and outdoor dining. Mr. Calamari alleges that Arcalhek researched the Town's building records and discovered that various building permits and certificates of occupancy had already been issued that allowed the premises to be used as a restaurant with an outdoor bar, including an outdoor freezer and a freestanding wood sculpture. Mr. Calamari further alleges that American obtained its building permit for the main building in or about November of 2005, and that Arcalhek was in contact with the Town during the construction process. Notably, Mr. Calamari avers that all work on the main building structure, outdoor rear decks attached to the main building, fantail deck, and fire pit are built to Code.
Mr. Calamari informs the Court of a meeting he attended with Town officials wherein the Town outlined four additional items that needed to be resolved before the three building permits could issue, to wit: (1) certification for the patio and deck design; (2) certification and wind calculations for the outdoor patio awnings; (3) design of fire pit protection or State variance for the fire pit; and (4) State approval for the cabana. Thereafter, Mr. Calamari contends that the Town made additional demands on Arcalhek and American, namely, storm surge calculations for the outdoor deck and patio; detail of the fire pit protection; canopy attachment detail; and a canopy flap location plan. Mr. Calamari alleges that on or about July 20, 2007, he submitted all remaining information to the Town in response to its demands. Finally, Mr. Calamari claims that during a conversation with Robert Seng, the Town's Plans Examiner, in or about September of 2007, Mr. Seng advised that he had "signed off" on the drawings and submissions pertaining to the outdoor decks, fire pit protection, and structure and awning.
SEAN MURRAY, vice president of JTM, American's construction manager for the project, indicates that American contracted with JTM to act as construction manager for the entire construction project. Mr. Murray alleges that he was the project executive, and was on-site an average of two times per week. Mr. Murray attests to the quality of the work performed, as well as the Town's knowledge and approval of the work during the construction process. Mr. Murray informs the Court that the Town inspected and approved each of the subcontractor's work by issuing a certification. Mr. Murray notes that these certifications include work performed on the outdoor areas. Moreover, Mr. Murray alleges that a certified engineer was hired to monitor the work on the fire pit, and another engineering firm, MUNICIPAL TESTING, performed inspections and prepared periodic reports which were filed with the Town.
ORESTE ALBICOCCO, the president and owner of PDSC, contends that the Town filed the instant action as a result of the refusal of American and PDSC to accede to the Town's demands for the two easements. Mr. Albicocco contends that if the Town acquired the easements, Prime's catering business would be devastated, as affairs held at the premises would no longer be private. Further, Mr. Albicocco raises unsettled issues concerning the easements, including which entity would be responsible for maintaining the easements, and which entity would be liable in case of an injury occurring on the easements.
To be entitled to preliminary injunctive relief with respect to a violation of its ordinance, a municipality need not meet the traditional three-prong test. Instead, it must demonstrate both a likelihood of success on the merits and that the balancing of equities weighs in its favor ( see Town Law § 268; Town of Thompson v Braunstein, 247 AD2d 753; City of Albany v Feigenbaum, 204 AD2d 842; Town of Lake George v Dehaan, 192 AD2d 820; Town of Esopus v Fausto Simoes Assocs., 145 AD2d 840; Town of Islip v Clark, 90 AD2d 500). A preliminary injunction will not be granted absent a showing that there is a clear right to such relief on the undisputed facts presented ( Town of Smithtown v Carlson, 204 AD2d 537). Moreover, since a preliminary injunction prevents litigants from taking actions that they would otherwise be legally entitled to take in advance of an adjudication on the merits, it is considered a drastic remedy which should be issued cautiously ( see Uniformed Firefighters Assn. of Greater NY v City of New York, 79 NY2d 236; Gagnon Bus Co., Inc. v Vallo Transp., Ltd. , 13 AD3d 334 ; Bonnieview Holdings v Allinger, 263 AD2d 933).
The Court has weighed the elements necessary for the granting of injunctive relief to the Town, and finds that a preliminary injunction is not warranted herein. In support of its application, the Town's affiants make conclusory allegations that the violations of the Town Code cause risks to the health, safety and welfare of the public, without specifying a single deficiency in the engineering or construction of the project, or any indication whatsoever of substandard materials or workmanship which violate any applicable building, fire or health department standard or requirement. In addition, the Town has failed to make any specific objections to the applications, plans, drawings, and other information submitted to the Town by American and its construction professionals in attempts to secure the necessary permits and certificates of occupancy. American alleges it complied with all requirements, demands, and additional demands imposed by the Town, and notwithstanding, the Town has failed to issue the necessary permits. The Court notes that American alleged that the Town's Plans Examiner "signed off" on American's drawings and submissions pertaining to the outdoor decks, fire pit protection, and structure and awning. The Town has not refuted this allegation.
In addition, American has alleged that the subcontractors who performed the electrical, plumbing, concrete, and other work separately obtained approvals from the Town, the Town inspected the work, and the construction is of high quality, structurally sound, and built to Code. Moreover, American argues that its use of the premises is within the scope of the prior, permitted use, to wit: a waterside restaurant with outdoor patio area. Again, the Town has not refuted these allegations. Based upon the foregoing, the Court finds that the Town has not made a strong showing of a likelihood of success on the merits.
Further, in balancing the equities, the Court finds that the scale tips in favor of American, as the potential hardship to American if the injunction is issued outweighs the potential hardship to the Town if it must await a determination on the merits. An injunction would potentially harm American's reputation, as well as cause it to lose substantial sums of money and to fire numerous employees. Accordingly, the Town's motion for a preliminary injunction as described hereinabove, is DENIED ( see e.g. Town of Islip v Modica Assoc. of NY 122, LLC , 45 AD3d 574 ; Town of Riverhead v County of Suffolk , 39 AD3d 537 ; Town of Huntington v Pierce Arrow Realty Corp., 216 AD2d 287).
With respect to American's cross-motion, on a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the complaint must be construed in the light most favorable to the plaintiff and all factual allegations must be accepted as true ( see Grand Realty Co. v City of White Plains, 125 AD2d 639; Barrows v Rozansky, 111 AD2d 105; Holly v Pennysaver Corp., 98 AD2d 570). Here, upon favorably viewing the facts alleged, and affording the Town "the benefit of every possible favorable inference" ( AG Capital Funding Partners, L.P. v State Street Bank and Trust Co. , 5 NY3d 582 ), without expressing opinion as to whether it can ultimately establish the truth of its allegations before the trier of fact, the Court finds that the complaint sufficiently pleads causes of action for violations of the Huntington Town Code and the Huntington Uniform Traffic Code. While the Court is mindful that the underlying reasons for the alleged violations are at issue, both here and in the related Article 78 proceeding, the complaint nevertheless sufficiently "pleads" the aforementioned causes of action. Accordingly, this cross-motion by American to dismiss the Town's complaint, pursuant to CPLR 3211(a)(7), is DENIED . That branch of American's motion, pursuant to CPLR 2512(1), seeking to fix damages pursuant to CPLR 6312(b), is DENIED , given the Court's ruling herein denying the Town's application for a preliminary injunction.
The foregoing constitutes the decision and Order of the Court.